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Proclamation No. 1, s.

1986
Signed on February 25, 1986

MALACAANG
MANILA
PROCLAMATION NO. 1
Sovereignty resides in the people and all government authority emanates
from them.
On the basis of the peoples mandate clearly manifested last February 7, I
and Salvador H. Laurel are taking power in the name and by the will of the
Filipino people as President and Vice President, respectively.
The people expect a reorganization of government. Merit will be rewarded.
As a first step to restore public confidence I expect all appointed public
officials to submit their courtesy resignations beginning with the members of
the Supreme Court.
I pledge to do justice to the numerous victims of human rights violations.
Consistent with the demands of the sovereign people, we pledge a
government dedicated to uphold truth and justice, morality and decency in
government, freedom and democracy.
To help me run the government, I have issued Executive Order No. 1 dated
February 25, 1986 appointing key cabinet ministers and creating certain task
forces.
I ask our people not to relax but to be even more vigilant in this one moment
of triumph. The Motherland cannot thank them enough. Yet, we all realize
that more is required of each and everyone of us to redeem our promises
and prove to create a truly just society for our people.
This is just the beginning. The same spirit which animated our campaign, and
has led to our triumph, will once more prevail, by the power of the people
and by the grace of God.
Done in the City of Manila, this 25th of February in the year of Our Lord,
nineteen hundred and eighty-six.
(Sgd.) CORAZON C. AQUINO
President

Proclamation No. 3, s. 1986


Signed on March 25, 1986

MALACAANG
MANILA
BY THE PRESIDENT
OF THE PHILIPPINES

PROCLAMATION NO. 3
DECLARING A NATIONAL POLICY TO IMPLEMENT REFORMS
MANDATED BY THE PEOPLE PROTECTING THEIR BASIC RIGHTS,
ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN
ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW
CONSTITUTION
WHEREAS, the new government was installed through a direct exercise of
the power of the Filipino people assisted by units of the New Armed Forces of
the Philippines;
WHEREAS, the heroic action of the people was done in defiance of the
provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as manifested by their
extraordinary action demands the complete reorganization of the
government, restoration of democracy, protection of basic rights, rebuilding
of confidence in the entire government system, eradication of graft and
corruption, restoration of peace and order, maintenance of the supremacy of
civilian authority over the military, and the transition to government under a
New Constitution in the shortest time possible;
WHEREAS, during the period of transition to a New Constitution it must be
guaranteed that the government will respect basic human rights and
fundamental freedoms;
WHEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by
virtue of the power vested in me by the sovereign mandate of the people; do
hereby promulgate the following Constitution:
PROVISIONAL CONSTITUTION
OF
THE REPUBLIC OF THE PHILIPPINES

ARTICLE 1
ADOPTION OF CERTAIN PROVISIONS OF THE
1973 CONSTITUTION, AS AMENDED
SECTION 1. The provisions of ARTICLE I (National Territory), ARTICLE III
(Citizenship), ARTICLE IV (Bill of Rights), ARTICLE V (Duties and Obligations of
Citizens), and ARTICLE VI (Suffrage) of the 1973 Constitution, as amended,
remain in the force and effect and are hereby adopted in toto as part of this
Provisional Constitution.
SECTION 2. The provision of ARTICLE II (Declaration of Principles and State
Policies), ARTICLE VII (The President), ARTICLE X (The Judiciary), ARTICLE XI
(Local Government), ARTICLE XIII (Accountability of Public Officers), ARTICLE
XIV (The National Economy and Patrimony of the Nation), ARTICLE XV
(General Provisions) of the 1973 Constitution, as amended, are hereby
adopted as part of this Provisional Constitution, as amended, are hereby
adopted as part of this Provisional Constitution, insofar as they are not
inconsistent with the provisions of this Proclamation.
ARTICLE II
THE PRESIDENT,
THE VICE-PRESIDENT, AND THE CABINET
SECTION 1. Until a legislature is elected and convened under a New
Constitution, the President shall continue to exercise legislative power.
The President shall give priority to measures to achieve the mandate of the
people to:
a)
Completely reorganize the government and eradicate unjust and
oppressive structures, and all iniquitous vestiges of the previous regime;
b)
Make effective the guarantees of civil, political, human, social,
economic and cultural rights and freedoms of the Filipino people, and provide
remedies against violations thereof;
c)
Rehabilitate the economy and promote the nationalist aspirations of
the people;
d)
Recover ill-gotten properties amassed by the leaders and supporters of
the previous regime and protect the interest of the people through orders of
sequestration or freezing of assets of accounts;

e)
Eradicate graft and corruption in government and punish those guilty
thereof; and,
f)
Restore peace and order, settle the problem of insurgency, and pursue
national reconciliation based on justice.
SECTION 2. The President shall be assisted by a Cabinet which shall be
composed of Ministers with or without portfolio who shall be appointed by
the President. They shall be accountable to and hold office at the pleasure of
the President.
SECTION 3. The President shall have control of and exercise general
supervision over all local governments.
SECTION 4. In case of permanent vacancy arising from death, incapacity or
resignation of the President, the Vice-President shall become President.
In case of death, permanent incapacity, or resignation of the Vice-President,
the Cabinet shall choose from among themselves the Minister with portfolio
who shall act as President.
SECTION 5. The Vice-President may be appointed Member of the Cabinet and
may perform such other functions as may be assigned to him by the
President.
SECTION 6. The President, the Vice-President, and the Members of the
Cabinet shall be subject to the disabilities provided for in Section 8, Article
VII, and in Section 6 and 7 Article IX, respectively, of the 1973 Constitution,
as amended.
ARTICLE III
GOVERNMENT REORGANIZATION
SECTION 1. In the reorganization of the government, priority shall be given to
measures to promote economy, efficiency, and the eradication of graft and
corruption.
SECTION 2. All elective and appointive officials and employees under the
1973 Constitution shall continue in the office until otherwise provided by
proclamation or executive order or upon the designation or appointment and
qualification of their successors, if such is made within a period of one year
from February 25, 1986.

SECTION 3. Any public office or employees separated from the service as a


result of the reorganization effected under this Proclamation shall, if entitled
under the laws then in force, receive the retirement and other benefits
accuring thereunder.
SECTION 4. The records, equipment, buildings, facilities and other properties
of all government offices shall be carefully preserved. In case any office or
body is abolished or reorganized pursuant to this Proclamation, its funds and
properties shall be transferred to the office or body to which its powers,
functions, and responsibilities substantially pertain.
ARTICLE IV
EXISTING LAWS
SECTION 1. All existing laws, decrees, executive orders, proclamations,
letters of instruction, implementing rules and regulations, and other
executive issuances not inconsistent with this Proclamation shall remain
operative until amended, modified, or repealed by the President or the
regular legislative body to be established under a New Constitution.
SECTION 2. The President may review all contracts, concessions, permits, or
other forms of privileges for the exploration, development, exploitation, or
utilization of natural resources entered into, granted, issued, or acquired
before the date of this proclamation and when the national interest requires,
amend, modify, or revoke them.
ARTICLE V
ADOPTION OF A NEW CONSTITUTION
SECTION 1. Within sixty (60) days from date of this Proclamation, a
Commission shall be appointed by the President to draft a New Constitution.
The Commission shall be composed of not less than thirty (30) nor more than
fifty (50) natural born citizens of the Philippines, of recognized probity,
known for their independence, nationalism and patriotism. They shall be
chosen by the President after consultation with various sectors of society.
SECTION 2. The Commission shall complete its work within as short a period
as may be consistent with the need both to hasten the return of normal
constitutional government to draft a document truly reflective of the ideals
and aspirations of the Filipino people.

SECTION 3. The Commission shall conduct public hearings to insure that the
people will have adequate participation in the formulation of the New
Constitution.
SECTION 4. The plenary session of the Commission shall be public and fully
recorded.
SECTION 5. The New Constitution shall be presented by the Commission to
the President who shall fix the date for the holding of a plebiscite. It shall
become valid and effective upon ratification by a majority of the votes cast in
such plebiscite which shall be held within a period of sixty (60) days following
its submission to the President.
ARTICLE VI
HOLDING OF ELECTIONS
SECTION 1. National elections shall be held as may be provided by the New
Constitution.
SECTION 2. Local elections shall be held on a date to be determined by the
President which shall be held on a date to be determined by the President
which shall not be earlier than the date of the plebiscite for the ratification of
the New Constitution.
ARTICLE VII
EFFECTIVE DATE
SECTION 1. This Proclamation shall take effect upon its promulgation by the
President.
SECTION 2. Pursuant to the letter and spirit of this Proclamation, a
consolidated official text of the Provisional Constitution shall be promulgated
by the President and published in English and Pilipino in the official Gazette
and in newspapers of general circulation to insure widespread dissemination.
DONE in the City of Manila, the 25th of March, in the year of Our Lord,
Nineteen Hundred and Eighty-Six.
(Sgd.) CORAZON C. AQUINO
By the President:
(SGD.)
JOKER
P. ARROYO
Executive
Secretary

Republic of the Philippines


SUPREME COURT
Manila
G.R. No. 76180 October 24, 1986
IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N

PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.
The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section
7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution
refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.
Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent President of the
Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness
of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent President Corazon
C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the second Monday of May,
1992 of the first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise

sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No.
73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador
H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the
Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.
MELENCIO-HERRERA, J., concurring:
GUTIERREZ, Jr., J., concurring:
FELICIANO, JJ., concurring.
The petitioner asks the Court to declare who are "the incumbent President and Vice President
elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.
We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to this
Court but to other departments of government constitutionally burdened with the task of making that
declaration.
The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected
President and Vice President in their respective areas. The certified returns are transmitted to the
legislature which proclaims, through the designated Presiding Head, who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not been
furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot
assume the function of stating, and neither do we have any factual or legal capacity to officially
declare, who were elected President and Vice President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution,
we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
CRUZ, J., concurring:
I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not
yet been ratified and is therefore not yet effective. I see here no actual conflict of legal rights
susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S.
227; PACU vs. Secretary of Education, 97 Phil. 806.)

EN BANC
[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of Appeals dated 14 November
1990.

RESOLUTION

PADILLA, J.:

Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter dated 14
November 1990 addressed to this Court, seeking the correction of his seniority ranking in the Court of
Appeals.
It appears from the records that petitioner was first appointed Associate Justice of the Court of Appeals on
20 June 1980 but took his oath of office for said position only on 29 November 1982, after serving as
Assistant Solicitor General in the Office of the Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court
pursuant to Batas Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary. Appropriating Funds
Therefor and For Other Purposes." 2 Petitioner was appointed Appellate Justice in the First Special Cases
Division of the Intermediate Appellate Court. On 7 November 1984, petitioner accepted an appointment to
be ceased to be a member of the Judiciary. 3
The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the entire
government, including the Judiciary. To effect the reorganization of the Intermediate Appellate Court and
other lower courts, a Screening Committee was created, with the then Minister of Justice, now Senator
Neptali Gonzales as Chairman and then Solicitor General, now Philippine Ambassador to the United Nations
Sedfrey Ordoez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of
the revolution, issued Executive Order No. 33 to govern the aforementioned reorganization of the Judiciary.
4
The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of
Appeals and assigned him the rank of number eleven (11) in the roster of appellate court justices. When the
appointments were signed by President Aquino on 28 July 1986, petitioners seniority ranking changed,
however, from number eleven (11) to number twenty six (26). 5
Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence for,
otherwise, it would run counter to the provisions of Section 2 of Executive Order No. 33, which reads:
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"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby amended to read as follows:

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"SEC. 2. Organization. There is hereby created a Court of Appeals which shall consist of a Presiding
Justice and fifty Associate Justices who shall be appointed by the President of the Philippines. The Presiding
Justice shall be so designated in his appointment and the Associate Justice shall have precedence according
to the dates of their respective appointments, or when the appointments of two or more shall bear the same
date, according to the order in which their appointments were issued by the President. Any Member who is
reappointed to the Court after rendering service in any other position in the government shall retain the
precedence to which he was entitled under his original appointment, and his service in the Court shall, for all
intents and purpose be considered as continuous and uninterrupted." 6

Petitioner elaborates that President Aquino is presumed to have intended to comply with her own Executive
Order No. 33 so much so that the correction of the inadvertent error would only implement the intent of the
President as well as the spirit of Executive Order No. 33 and will not provoke any kind of constitutional
confrontation (between the President and the Supreme Court). 7
Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the Court of Appeals
who, according to petitioner, was transferred from his position as Justice of the Court of Appeals to the
Ministry of Justice as Commissioner of Land Registration and in 1986 was reappointed to the Court of
Appeals. Petitioner states that his (Victorianos) stint in the Commission of Land Registration did not
adversely affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order No. 33 was
correctly applied. 8
In a resolution of the Court en banc dated 29 November 1990, the Court granted Justice Punos request. 9 It
will be noted that before the issuance of said resolution, there was no written opposition to, or comment on
petitioners aforesaid request. The dispositive portion of the resolution reads:
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"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction of his seniority ranking
in the Court of Appeals is granted. The presiding Justice of the Court of Appeals, the Honorable Rodolfo A.
Nocon, is hereby directed to correct the seniority rank of Justice Puno from number twelve (12) to number
five (5). Let copies of this Resolution be furnished the Court Administrator and the Judicial and Bar Council
for their guidance and information." 10
A motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was later filed
by Associate Justices Jose C. Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices affected by
the ordered correction. They contend that the present Court of Appeals is a new Court with fifty one (51)
members and that petitioner could not claim a reappointment to a prior court; neither can he claim that he
was returning to his former court, for the courts where he had previously been appointed ceased to exist at
the date of his last appointment. 11
The Court en banc in a resolution dated 17 January 1992 required the petitioner to file his comment on the
motion for reconsideration of the resolution dated 29 November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in relation to B.P. Blg. 129,
his seniority ranking in the Court of Appeals is now number five (5) for, though President Aquino rose to
power by virtue of a revolution, she had pledged at the issuance of Proclamation No. 3 (otherwise known as
the Freedom Constitution) that "no right provided under the unratified 1973 Constitution (shall) be absent in
the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the last
sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory construction rules on simultaneous repeal and reenactment mandate, according to petitioner, the preservation and enforcement of all rights and liabilities
which had accrued under the original statute. 13 Furthermore, petitioner avers that, although the power of
appointment is executive in character and cannot be usurped by any other branch of the Government, such
power can still be regulated by the Constitution and by the appropriate law, in this case, by the limits set by
Executive Order NO. 33 14 for the power of appointment cannot be wielded in violation of law. 15
Justices Javellana and Campos were required by the Court to file their reply to Justice Punos comment on
their motion for reconsideration of the resolution of the Court en banc dated 24 January 1991.
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In their Reply and Supplemental Reply, Associate Justices Javellana and Campos submit that the appeal or
request for correction filed by the petitioner was addressed to the wrong party. They aver that as petitioner
himself had alleged the mistake to be an "inadvertent error" of the Office of the President, ergo, he should
have filed his request for correction also with said Office of the President and not directly with the Supreme
Court. 16 Furthermore, they point out that petitioner had indeed filed with the Office of the President a
request or petition for correction of his ranking, (seniority) but the same was not approved such that his
recourse should have been an appropriate action before the proper court and impleading all parties
concerned. The aforesaid non-approval by the Office of the President they argue, should be respected by the
Supreme Court "not only on the basis of the doctrine of separation of powers but also their presumed
knowledge ability and even expertise in the laws they are entrusted to enforce" 17 for it (the non-approval)
is a confirmation that petitioners seniority ranking at the time of his appointment by President Aquino was,
in fact, deliberate and not an "inadvertent error" as petitioner would have the Court believe. 18

The resolution of this controversy is not a pleasant task for the Court since it involves not only members of
the next highest court of the land but persons who are close to members of this Court. But the controversy
has to be resolved. The core issue in this case is whether the present Court of Appeals is a new court such
that it would negate any claim to precedence or seniority admittedly enjoyed by petitioner in the Court of
Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 or whether the present
Court of Appeals is merely a continuation of the Court of Appeals and Intermediate Appellate Court existing
prior to said Executive Order No. 33.
It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the
Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was
created in the wake of the massive reorganization launched by the revolutionary government of Corazon C.
Aquino in the aftermath of the people power (EDSA) revolution in 1986.
A resolution has been defined as "the complete overthrow of the established government in any country or
state by those who were previously subject to it" 19 or as "a sudden, radical and fundamental change in the
government or political system, usually effected with violence or at least some acts of violence." 20 In
Kelsens book, General Theory of Law and State, it is defined as that which "occurs whenever the legal order
of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself."
21
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the
"people power revolution" that the Filipino people tore themselves away from an existing regime. This
revolution also saw the unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as "an inherent right of a people
to cast out their rulers, change their policy or effect radical reforms in their system of government or
institutions by force or a general uprising when the legal and constitutional methods of making such change
have proved inadequate or are so obstructed as to be unavailable." 22 It has been said that "the locus of
positive law-making power lies with the people of the state" and from there is derived "the right of the
people to abolish, to reform and to alter any existing form of government without regard to the existing
constitution." 23
The three (3) clauses that precede the text of the Provisional (Freedom) Constitution, 24 read:

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"WHEREAS, the new government under President Corazon C. Aquino was installed through a direct exercise
of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution,
as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue of the powers vested in me by
the sovereign mandate of the people, do hereby promulgate the following Provisional Constitution."25
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These summarize the Aquino governments position that its mandate is taken from "a direct exercise of the
power of the Filipino people." 26
Discussions and opinions of legal experts also proclaim that the Aquino government was "revolutionary in
the sense that it came into existence in defiance of the existing legal processes" 27 and that it was a
revolutionary government "instituted by the direct action of the people and in opposition to the authoritarian
values and practices of the overthrown government." 28
A question which naturally comes to mind is whether the then existing legal order was overthrown by the
Aquino government. "A legal order is the authoritative code of a polity. Such code consists of all the rules
found in the enactments of the organs of the polity. Where the state operates under a written constitution,
its organs may be readily determined from a reading of its provisions. Once such organs are ascertained, it
becomes an easy matter to locate their enactments. The rules in such enactments, along with those in the
constitution, comprise the legal order of that constitutional state." 29 It is assumed that the legal order
remains as a "culture system" of the polity as long as the latter endures 30 and that a point may be
reached, however, where the legal system ceases to be operative as a whole for it is no longer obeyed by
the population nor enforced by the officials. 31
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact,

it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution
had earlier declared Mr. Marcos at the winner in the 1986 presidential election. 32 Thus it can be said that
the organization of Mrs. Aquinos Government which was met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of
the Marcos Cabinet officials, revampt of the Judiciary and the Military signalled the point where the legal
system then in effect, had ceased to be obeyed by the Filipino.
The Court holds that the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order
No. 33 phased out as part of the legal system abolished by the revolution and that the Court of Appeals
established under Executive Order No. 33 was an entirely new court with appointments thereto having no
relation to earlier appointments to the abolished courts, and that the reference to precedence in rank
contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive Order No. 33 refers to
prospective situations as distinguished from retroactive ones.
But even assuming, arguendo, that Executive Order No. 33 did not abolish the precedence or seniority
ranking resulting from previous appointment to the Court of Appeals or Intermediate Appellate Court
existing prior to the 1986 revolution, it is believed that President Aquino as head of then revolutionary
government, could disregard or set aside such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive Order No. 33, President Aquino was still
exercising the powers of a revolutionary government, encompassing both executive and legislative powers,
such that she could, if she so desired, amend, modify or repeal any part of B.P. Blg. 129 or her own
Executive Order No. 33. It should also be remembered that the same situation was still in force when she
issued the 1986 appointments to the Court of Appeals. In other words, President Aquino, at the time of the
issuance of the 1986 appointments, modified or disregarded the rule embodied in B.P. Blg. 129 as amended
by Executive Order No. 33, on precedence or seniority in the case of the petitioner, for reasons known only
to her. Since the appointment extended by the President to the petitioner in 1986 for membership in the
new Court of Appeals with its implicit ranking in the roster of justices, was a valid appointment anchored on
the Presidents exercise of her then revolutionary powers, it is not for the Court at this time to question or
correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority rankings of members of
the Court of Appeals, including that of the petitioner, at the time the appointments were made by the
President in 1986, are recognized and upheld.
SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr. and Romero, JJ., concur.
Separate Opinions
FELICIANO, J., concurring:

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I agree with the conclusion reached in the majority opinion written by my learned brother, Padilla, J. In
particular, I agree that the Court of Appeals established by Executive Order No. 33 is a new court, and was
not merely the old Intermediate Appellate Court with a new label.
If one examines the provisions of B.P. Blg. 129, known as "The Judiciary Reorganization Act of 1980,"
relating to the old Intermediate Appellate Court, it is quite clear that the previously existing Court of Appeals
was abolished and a new court, denominated the Intermediate Appellate Court, was created. Thus, Section 3
of B.P. Blg. 129 reads as follows:
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"Sec. 3. Organization. There is hereby created an Intermediate Appellate Court which shall consist of a
Presiding Appellate Justice and forty-nine Associate Appellate Justices who shall be appointed by the
President of the Philippines. The Presiding Appellate Justice shall be so designated in his appointment, and
the Associate Appellate Justices shall have precedence according to the dates of their respective
appointments, or when the appointments of two or more of them shall bear the same date, according to the
order in which their appointments were issued by the President. Any member who is reappointed to the
Court after rendering service in any other position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in Court shall, to all intents and purposes, be

considered as continuous and uninterrupted." (Emphasis supplied)


Section 44 of the same statute provided as follows:

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"Sec. 44. Transitory provisions. The provisions of this Act shall be immediately carried out in accordance
with an Executive Order to be issued by the President. The Court of Appeals, the Courts of First Instance,
the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the
City Courts, the Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently
constituted and organized, until the completion of the reorganization provided in this Act as declared by the
President. Upon such declaration, the said courts shall be deemed automatically abolished and the
incumbents thereof shall cease to hold office. The cases pending in the old Courts shall be transferred to the
appropriate Courts constituted pursuant to this Act, together with the pertinent function, records,
equipment, property and the necessary personnel.
x

(Emphasis supplied)
Executive Order No. 33, promulgated on 28 July 1986, provided in part as follows:

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"Section 2. Section 3, Chapter I of Batas Pambansa Blg. 129, is hereby amended to read as follows:

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SEC. 3. Organization There is hereby created a Court of Appeals which shall consist of a Presiding Justice
and fifty Associate Justices who shall be appointed by the President of the Philippines. The Presiding Justice
shall be so designated in his appointment, and the Associate Justices shall have precedence according to the
dates of their respective appointments, or when the appointments of two or more of them shall bear the
same date, according to the order in which their appointments were issued by the President. Any member
who is reappointed to the Court after rendering service in any other position in the government shall retain
the precedence to which he was entitled under his original appointment, and his service in the Court shall,
for all intents and purposes, be considered as continuous and uninterrupted." (Emphasis supplied)
Although Executive Order No. 33 spoke of amending Section 3, Chapter 1 of B.P. Blg. 129, it will be seen
that what really happened was the re-enactment of said Section 3, Chapter 1 of B.P. Blg. 129. In other
words, much more happened than simply the renaming of the old Intermediate Appellate Court into (once
again) Court of Appeals. If all that Executive Order No. 33 wanted to achieve was the relabeling of the old
Intermediate Appellate Court into the "Court of Appeals," there was no need to amend or re-enact Section 3
of B.P. Blg. 129. For Section 8 of Executive Order No. 33 provided as follows:
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"SECTION 8. The terms Intermediate Appellate Court, Presiding Appellate Justice and Associate Appellate
Justice(s) used in the Judiciary Reorganization Act of 1980 or in any other law or executive order shall
hereafter mean Court of Appeals, Presiding Justice and Associate Justice(s), respectively."
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Thus, President Aquino was quite free, legally speaking to appoint to the new Court of Appeals whoever in
her judgment was fit and proper for membership in that new court in an order of precedence that she was
just then establishing.
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The sentence found in Section 3 of B.P. Blg. 129 as amended or re-enacted through the medium of Section 2
of Executive Order No. 33
"Any Member who is reappointed to the Court after rendering service in any other position in the
government shall retain the precedence to which he was entitled under his original appointment, and his
service in the Court shall, for all intents and purposes, be considered as continuous and uninterrupted."

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which my distinguished brother in the Court, Gutierrez, Jr., J., very heavily stressed, contemplates in my
submission the situation of a member of the new Court of Appeals accepting appointment to some other
department or branch of government, outside the Judiciary, and who later receives an appointment once
again to that same Curt of Appeals. But Mr. Justice Reynato S. Puno was not in such a situation. The last
preceding appointment to the Judiciary of Mr. Justice Reynato S. Puno was to the then Intermediate
Appellate Court newly created by B.P. Blg. 129. In 1984, he left that court to become Deputy Minister in the
Ministry of Justice. His next appointment to the Judiciary was not to the old Intermediate Appellate Court,
which by that time had passed on to history. His appointment dated 28 July 1986, was, in my view, as

already noted, to the new Court of Appeals established by Executive Order No. 33. Thus, the last sentence
of Section 3 of B.P. Blg. 129 (before re-enactment by Executive Order No. 33) afforded no basis for a claim
to the same numerical precedence in the new Court of Appeals that he would have been entitled to had the
old Intermediate Appellate Court not gone out of existence. It is difficult for me to understand how a claim
to a particular position in an order of precedence can be made where the court itself, to which the new
appointment is made, is a new and distinct court.
I vote to grant the Motion for Reconsideration.
BELLOSILLO, J., concurring:

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I agree with the ponencia of Mr. Justice Padilla, so I vote to grant the motion for reconsideration of Our
Resolution of November 29, 1990. I am for respecting the seniority ranking of the Associate Justices of the
Court of Appeals at the time they were appointed by the President on July 31, 1986.
I must admit that, like Mr. Justice Gutierrez, Jr., and Mr. Justice Padilla, it was not easy for me to decide to
participate in the deliberations in this case considering that it involves esteemed colleagues in the Court of
Appeals. As such, when subject Resolution was promulgated, I did not react despite the proddings of wellmeaning friends. It refused to be dragged into the "fray" in deference to Justice Reynato S. Puno who would
be adversely affected. I remained firm in my resolve to stay away from the controversy. It was to me a
personal privilege so to do, which i could waive, as I did.
But circumstances have changed; not that I no longer revere my friendship with Justice Puno, but as a
member now of this Court it has become my duty no longer a mere privilege, much less a right to aid
the Court in resolving this controversy in the fairest possible way, a responsibility I find no justification to
shirk.
On August 1, 1986, at the oath-taking ceremonies for the newly-appointed members of the Court of Appeals
at Malacaang, when I noticed Justice Puno take a seat on my right, 1 I asked him to transfer to the left
where our senior justices were assigned. I was assuming that he should be on the left because he was
appointed to the old Appellate Court ahead of me. But he showed me the list where he appeared as No. 26,
Justice Lising, No. 25, and I was No. 24. Since he appeared perturbed with his new rank, I suggested to him
to seek the help of then Justice Secretary Neptali A. Gonzales, Chairman of the Screening Committee that
processed the appointments of the new members of the Court of Appeals, and who was then just a meter
and a half in front of us. But after talking to Secretary Gonzales, Justice Puno returned to his original
assigned seat. When I asked him what happened, he simply shrugged his shoulders. Obviously, he failed in
his bid.
We then took our oath in the order we were ranked in the list.
Some two (2) months or so later, in an En Banc session back in the Court of Appeals, as we were seated
side by side with Justice Puno, 2 I inquired again from him as to what happened to his request with
Malacaang conveyed through the Presiding Justice for the correction of his ranking. Justice Puno told me it
was not granted.
The letter of then Presiding Justice Emilio A. Gancayco dated August 7, 1986, which was his second in fact
on the subject, addressed to Executive Secretary Joker P. Arroyo, is enlightening and informative
"Dear Sir:

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In relation to my letter of August 5, 1986 informing you of the possible over-sight in the ranking of Mr.
Justice REYNATO S. PUNO in his reappointment as member of this Court, I am furnishing you a certification
of the Clerk of Court to the same effect, and also in relation to the ranking of Messrs. Rodolfo A. Nocon and
Jorge A. Coquia who in accordance with their original appointment to this Court are more senior than Mr.
Justice Oscar R. Victoriano in the said order.
If Her Excellency President Corazon Aquino should decide to rearrange the ranking of the incumbent justices
of this Court in accordance with the provisions of Section 2, Executive Order # 33 their proper ranking
should be as follows:
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No. 3 Mr. Justice Rodolfo A. Nocon;

No. 4 Mr. Justice Jorge A. Coquia;


No. 5 Mr. Justice Oscar R. Victoriano; and
No. 11 Mr. Justice Reynato S. Puno."

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While this letter perhaps did not elicit the desired response from Executive Secretary Arroyo as his answer
did not squarely settle the issue, the message is clear, i.e., Malacaang did not grant the request for
correction of what was perceived to be a "possible oversight", even after it was twice brought to its
attention. Here I am reminded of the principle in procedure that a motion that is not granted, especially
after an unreasonable length of time, is deemed denied, and the lapse of more than four (4) years before
Justice Puno finally came to Us 3 is reasonably unreasonable.
The letter-appointment of President Corazon C. Aquino addressed to then Chief Justice Claudio Teehankee
dated July 31, 1986, in fact categorically specifies the order of seniority of her appointees, thus
"Dear Mr. Chief Justice.
I have appointed the Presiding Justice and the Associate Justices of the Court of Appeals under the following
order of seniority:
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1. Hon. Emilio A. Gancayco, Presiding Justice . . .


3. Hon. Oscar R. Victoriano, Associate Justice
4. Hon. Rodolfo A. Nocon, Associate Justice
5. Hon. Jorge A. Coquia, Associate Justice . . .
12. Hon. Jose C. Campos, Jr., Associate Justice . . .
16. Hon. Luis A. Javellana, Associate Justice . . .
26. Hon. Reynato S. Puno, Associate Justice . . ."
x

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x"

Considering the circumstances herein narrated, I find it difficult to yield to the proposition that an error was
committed through inadvertence by Malacaang in the ranking of the justices appointed to the Court of
Appeals on July 31, 1986.
The above-quoted letter of President Aquino also brings to focus the ranking of Justice Oscar R. Victoriano
who was junior to Justices Nocon and Coquia in the old Court, as reflected in the letter of Presiding Justice
Gancayco. However, in the letter of the President, Justice Victoriano was ranked No. 3, while Justices Nocon
and Coquia were ranked No. 4 and No. 5, respectively. Hence, it is not accurate to say that Justice Victoriano
was reinstated to his former rank in the old Court, but was even given a rank higher than Justices Nocon
and Coquia. This "possible oversight" was also brought to the attention of Malacaang but, like the case of
Justice Puno, no correction was made.
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All these clearly support the view of Mr. Justice Padilla in his ponencia, as well as of Mr. Justice Feliciano in
his concurring opinion, that the present Court of Appeals is an entirely different court, distinct from the old
Intermediate Appellate Court or the former Court of Appeals, with a new members although some were
drawn from the now defunct Intermediate Appellate Court, and that the "error" referred to by Justice Puno
could not have been only through "inadvertence" but deliberate, otherwise, Malacaang could have readily
effected the correction?
But whether the "error" was deliberate or committed through inadvertence, is Our Court the proper venue
for the correction? Can We now correct this alleged error of the appointing authority? Worse, can We direct
the Office of the President to do what is exclusively within its prerogative?
This brings me to the final point which bothers me still further. If We sustain the claim that the present Court
of Appeals is merely a continuation of the old Intermediate Appellate Court, or of the old Court of Appeals,

then We may be swarmed with requests not only for re-ranking but also for reinstatement of those who
were not reappointed on July 31, 1986, but against whom no charges have been filed. For then, should they
not be allowed to enjoy their security of tenure as civil servants under the Constitution?
In the case of Justice Jorge S. Imperial, he was a member of the old Intermediate Appellate Court who was
not reappointed to the new Court of Appeals on July 31, 1986. There was no charge against him. He was
later reappointed but only on January 2, 1987. Should We also order that he be reinstated to his former rank
in the Intermediate Appellate Court? Then, We may have to dislodge some of the present division Chairmen
of the Court of Appeals to accommodate him. That would be unsettling, disturbing, and disruptive of the
present system. I do not think We wish this to happen.
GUTIERREZ, JR., J., dissenting:

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I regret that I have to differ from the position taken by Mr. Justice Padilla regarding the seniority ranking of
Justice Reynato S. Puno in the Court of Appeals.
I agree that the resolution of the controversy is not a pleasant one for us since it involves persons who are
close to the members of this Court. For me, the task is particularly difficult because apart from close
personal relationship, I also highly respect the parties considerable talents, abilities and qualifications. I
have known Justice Jose C. Campos, Jr. since my student days and as a junior member of this Court, I once
urged his nomination for appointment to the Supreme Court even before he started to serve in the Court of
Appeals. Justice Luis A. Javellana was my colleague in the Social Security System while Justice Reynato S.
Puno and I worked together in the Office of the Solicitor General.
I believe, however, that we can resolve the issues on the basis of the facts and the applicable law, in the
same way that we reverse or affirm the parties respective ponencias disregarding personal feelings or close
association.
The applicable provision of law in this case was introduced into the Judiciary Act of 1948 by Rep. Act No.
5204 on June 15, 1968 when it amended the first paragraph of Section 24 to read:
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"Provided, however, that any member of the Court of Appeals who has been reappointed to that court after
rendering service in any other branch of the government shall retain the precedence to which he is entitled
under his original appointment and his service in court shall, to all intents and purposes, be considered as
continuous and uninterrupted . . ."
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This provision was reiterated in all subsequent repealing or amendatory acts and continues to the present. It
is found in Batas Pambansa Blg. 129, Section 3 and in Executive Order No. 33 under President Corazon C.
Aquino reorganized the Court of Appeals.
I respectfully submit that from 1968 to 1992, there was no single moment when this provision ceased to
exist. It was never repealed and never disappeared from the law. Everybody, including the appointing power
is, of course, bound by the law.
I agree with Justice Padillas discussion of President Aquinos powers in a revolutionary government, a
government revolutionary in the sense that it came into existence in defiance of the existing legal processes.
I, however, believe that the appointments of the Justices of the Court of Appeals in 1986 were not a
personal act of a revolutionary President. Far from it.
First, President Aquinos government ceased to be revolutionary on March 25, 1986 when she promulgated
Proclamation No. 3, which she called the Freedom Constitution. Her government became a constitutional one
bound by the Freedom Constitution and the executive orders issued under its authority.
Second, one significant provision of the Freedom Constitution states that "all elective and appointive officials
and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation
or executive order or upon the designation or appointment and qualification of their successors, if such
appointment is made within a period of one year from February 26, 1986." (Section 2, Article III, Emphasis
supplied).

Third, the President implemented the above provision of the Constitution on July 28, 1986 when she issued
Executive Order No. 33 which amended B.P. 129. As earlier stated, Executive Order No. 33 reiterated
verbatim the provision of B.P. No. 129 which provided for retention of precedence of a member who is
reappointed after a sting in another position in the government.
President Aquino was bound by the provisions of Executive Order No. 33 because it is a law enacted
pursuant to constitutional authority. She could no longer act as a revolutionary President because there was
a Constitution, and there were statutes under that Constitution, in existence.
More important, Executive Order No. 33 was enacted precisely to provide for the reorganization of the
Intermediate Appellate Court into the Court of Appeals. The President intended that every provision of
Executive Order No. 33 should be followed precisely for the purpose for which it was enacted, namely,
reorganization of the appellate court. I cannot understand the reasoning which says that all provisions of
Executive Order No. 33 must apply in the reorganization of the Court of Appeals except the provision on
retention of seniority by a reappointed member which must be for the future only.
Even assuming that this one sentence of Executive Order No. 33 was intended to be prospective, then the
President has to follow B.P. No. 129 because Proclamation No. 3, Article IV provides:
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"SECTION 1. All existing laws, decrees, executive orders, proclamations, letters of instruction, implementing
rules and regulations, and other executive issuances not inconsistent with this Proclamation shall remain
operative until amended, modified, or repealed by the President or the regular legislative body to be
established under a New Constitution."
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For us lawyers, there is one signal feature of President Aquinos six years in the presidency and this is her
dedicated personal observance of the rule of law. Even when some of our decisions nullified her favorite
projects, she unhesitatingly ordered compliance with our interpretation of the law. I cannot believe that the
President would knowingly violate one provision of a law she promulgated even as she complied with ever
other provision of that same law.
Not only the law but also the facts support the correctness of our November 29, 1990 resolution.
We stated in our resolution:

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"Following this specific provision on seniority, the Screening Committee recommended the return and
reappointment of Justice Puno as Associate Justice of the New Court of Appeals. He was assigned the
seniority rank of number eleven (11) following Associate Justice Vicente V. Mendoza who was given the
seniority rank of number ten (10). Unfortunately, however, due to a mistake which can only be inadvertent,
the seniority rank of Justice Puno appears to have been changed from number eleven (11) to number twenty
six (26), after the appointments in the new Court of Appeals were signed by President Aquino. Through his
letter, Justice Puno prays for the correction of his seniority ranking alleging that he should now be given the
seniority rank of number five (5) instead of number twelve (12) in the Court of Appeals.
We find the petition for correction of ranking by Justice Puno to be meritorious. The mistake in the ranking of
Justice Puno from number eleven (11) to number twenty six (26) in the 1986 judicial reorganization has to
be corrected, otherwise, there will be a violation of the clear mandate of Executive Order No. 33 that any
member who is reappointed to the Court after rendering service in any other position in the government
shall retain the precedence to which he was entitled under his original appointment, and his service in the
court shall, for all intents and purposes be considered as continuous and uninterrupted. In fine, the
executive service of Justice Puno as Deputy Minister of Justice should not adversely affect the continuity of
his service in the judiciary upon his return and appointment thereto on July 28,1 986. Otherwise, the
salutary purpose of Executive Order No. 33 which is to attract competent members of the judiciary to serve
in other branches of the government without fear of losing their seniority status in the judiciary in the event
of their return thereto would be defeated . . ." (Res. dtd. 11-29-90, pp. 2-3)
Nobody disputes the fact that the Screening Committee headed by the then Secretary of Justice Neptali
Gonzales and a member of which was our own Justice Leo D. Medialdea ranked Justice Reynato S. Puno as
No. 11 in their recommendation.
When the appointments came out, Mr. Puno was No. 26. This, of course, violates not only Executive Order
No. 33 but also the laws on the same subject which preceded it.

That the President never intended to violate a key provision of law is shown in the September 17, 1986
letter of Executive Secretary Joker P. Arroyo, appended to the Reply submitted by Justices Campos and
Javellana. The explanation reads:
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"17 September 1986


Hon. Emilio A. Gancayco
Presiding Justice
Court of Appeals
Manila.
Sir:

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In reply to your enclosed letter of August 7, 1986, please be informed that the President had nothing to do
with the order of seniority. The list and order of seniority was submitted by a screening committee and
passed on to the Supreme Court for review.
Very truly yours,
(SGD.) JOKER P. ARROYO
Executive Secretary"
When Secretary Arroyo states that the President had nothing to do with the order or sequence of seniority, it
means that she just followed the recommendations of her own Screening Committee, which
recommendations had already been reviewed by the Supreme Court. She did not select any recommendees
her own. She never deviated from the recommendations because everybody recommended was appointed.
The change from No. 11 to No. 26 could not have been a deliberate act of the President as she had nothing
to do with the order of seniority of the Justices she was appointing. The change could only have been an
inadvertence because it was violative not only of the law but also of the recommendations of her Screening
Committee.
There are other matters raised in the letter and reply of Justices Campos and Javellana which have been
answered by Justice Puno in his Comment. I find no need to comment on them at this time.
I regret if my answer to the query of Justice Campos led him to be lulled into inaction. Justice Campos called
me up over the telephone inquiring about the petition of Justice Puno before I was aware that there was
such a petition. I try to read all petitions filed with the court en banc but I do so only after they are placed in
the agenda and are in the next order of business of a particular session. My staff never places a copy of any
petition on my desk until it is entered in the agenda. It is unfortunate that Justices Campos, Camilon, dela
Fuente, Javellana, Purisima, de Pano, and Bellosillo were not furnished copies of the letter-petition of Justice
Puno but this is for then Chief Justice Marcelo B. Fernan and Clerk of Court Atty. Daniel T. Martinez to
explain.
Justices Campos and Javellana state that "Justice Puno is 50 years old and to put him in No. 5 will destroy
the chances of those displaced by him who are older than he to aspire for promotion."
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The fears of the good Justices are unfounded. Except for the Presiding Justice, a greater number of "junior"
Justices have been appointed in the past ten years to the Supreme Court from the Court of Appeals, than
the most senior Justices of that Court. In other words, there has been more by passing of senior members
than adherence to the seniority listing. In fact, the latest nominations of the Judicial and Bar Council for
position to which Justice Bellosillo was appointed, included Justice Campos and excluded Justices Kapunan
and Puno. I understand that in the past few vacancies in this court, Justice Campos has been nominated
more often than Justice Puno.
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Our resolution dated November 29, 1990 correcting the seniority ranking of Justice Puno was a unanimous
decision of this Court except for Mr. Justice Padilla were discussed and fully deliberated upon. Since our
resolution is based on both the facts and the law, I see no reason why we should modify or set it aside.

I, therefore, vote to reiterate the Courts resolution dated November 29, 1990.
Narvasa, C.J., Bidin, Medialdea and Nocon, JJ., concur.
CRUZ, J., dissenting:

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I join Mr. Justice Gutierrez in his dissent, with these brief additional remarks.
Sec. 3 of BP 129 laid down the original precedence rule applicable to members of the Intermediate Appellate
Court. This was embodied in Sec. 2 of EO 33 without change except as to the name of the court. The first
provision was not repealed. As Mr. Justice Feliciano points out, it was merely "re-enacted."
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I do not think the re-enacted rule was intended to operate prospectively only. I believe it continues to be
available to the former members of the Intermediate Appellate Court no less than to the members of the
Court of Appeals.
It is a well-known canon of construction that apparently conflicting provisions should be harmonized
whenever possible. The ponencia would instead revoke Sec. 3. of BP 129 even though Sec. 2 of EO 33 has
not repealed but in fact re-enacted it. I would reconcile the two provisions and give effect to both.
Significantly, Sec. 8 of EO 33 provides that "the term Intermediate Appellate Court . . . shall hereafter mean
Court of Appeals."
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Narvasa, C.J., concurs.


Endnotes:

1. Rollo, p. 10.
2. B.P. Blg. 129 was passed by the Batasang Pambansa on 10 August 1981 and signed into law by President
Ferdinand E. Marcos on 14 August 1981.
3. Rollo, p. 4.
4. Executive Order No. 33 was issued on 28 July 1986 by President Corazon C. Aquino.
5. Rollo, p. 2.
6. Rollo, pp. 5, 5-A.
7. Ibid., p. 5-A.
8. Ibid.
9. Rollo, pp. 1-3.
10. Ibid., p. 3.
11. Ibid., p. 18.
12. Rollo, pp. 28-29. Remarks of President Corazon C. Aquino at a media briefing announcing the
promulgation of a transition Constitution (otherwise known as the Freedom Constitution) at the Freedom
Hall, Malacaang, March 25, 1986.
13. Rollo, pp. 26-27. See also Alcantara, Statutes, 1990 ed., p. 164 citing Crawford: Statutory Construction
and Agpalo, Statutory Construction, 1990 ed., p. 304 citing American Bible Society v. City of Manila, 101
Phil. 386.

14. Rollo, p. 41.


15. Ibid., p. 42.
16. Rollo, pp. 47-50.
17. Cuerdo v. Commission on Audit, 166 SCRA 657 citing Tagum Doctors Enterprises v. Gregorio Apsay, Et
Al., G.R. No. 81188, August 30, 1988.
18. Rollo, p. 49.
19. Kitlow v. Kiely, 44 F. Ed. 227, 232.
20. State v. Diamond, 202 P. 988, 991.
21. Kelsen, General Theory of Law and State (1946), p. 117.
22. H. Black, Handbook of American Constitutional Law II, 4th edition, 1927.
23. Political Rights as Political Questions. The Paradox of Luther v. Borden, 100 Harvard Law Review 1125,
1133 (1987).
24. Proclamation No. 3 (1986).
25. Ibid.
26. Proclamation No. 1 (1986) and Proclamation No. 3 (1986).
27. J. Bernas, Proclamation No. 3 with Notes by Joaquin Bernas, S.J. 3 (1986).
28. Address by U.P. President, now Senator Edgardo Angara, Bishops-Businessmens Conference, March 21,
1986, 27 U.P. Gazette 28, 29.
29. Fernandez, Law and Polity: Towards a Systems Concept of Legal Validity, 46 Phil. Law Journal, 390-391
(1971).
30. Id., at 422.
31. Fernandez, supra note 29.
32. 1973 Constitution, Art. VII, Sec. 5.
BELLOSILLO, J., concurring:

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1. As prearranged by the Protocol Officer, the newly-appointed Justices were assigned seats according to
seniority from left to right, so that when called to take their oath they would only have to rise, move
forward, turn around, and face the President, as well as their families and friends, for their oath-taking so
that seniority ranking would automatically be observed in reverse, from right o left.
2. In En Banc sessions, even numbers are assigned consecutively on one side and odd numbers on the other
side, and Justice Puno and myself were ranked No. 26 and 24, respectively.
3. The letter-request of Justice Puno to this Court is dated November 14, 1990, while the reply of Executive
Secretary Joker P. Arroyo which did not grant the request, is dated September 17, 1986.

Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

Proclamation No. 58, s. 1987


Signed on February 11, 1987

MALACAAN
MANILA
BY THE PRESIDENT
OFPALACE
THE PHILIPPINES

PROCLAMATION NO. 58
PROCLAIMING THE RATIFICATION OF THE CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES ADOPTED BY THE CONSTITUTIONAL
COMMISSION OF 1986, INCLUDING THE ORDINANCE APPENDED
THERETO
WHEREAS, the Constitutional Commission of 1986
of the Republic of the Philippines on October 15,
Ordinance appended thereto, which shall become
ratification by a majority of the votes cast in a
purpose;

adopted the Constitution


1986, together with the
valid and effective upon
plebiscite called for the

WHEREAS, the Commission on Elections, sitting as the national board of


canvassers for the February 2, 1987 plebiscite on the proposed Constitution,
certified that:
(1) The Commission on Elections canvassed the returns from 83,288 voting
precincts throughout the country involving 21,785,216 votes cast; and
(2) On the basis of the canvass made by the Commission on Elections, the
results thereof are as follows:
(a)

Affirmative votes:

16,622,111

(b)

Negative Votes:

4,953,375

(c)

Abstentions:

209,730

A copy of the Certificate of Canvass of the Votes Cast in the Plebiscite Held
on February 2, 1987, of the Commission on Elections dated February 7, 1987
is hereto attached as Annex A of this Proclamation.
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines,
by virtue of the powers vested in me by the sovereign mandate of the
people, do hereby proclaim that the Constitution of the Republic of the

Philippines adopted by the Constitutional Commission of 1986, including the


Ordinance appended thereto, has been duly ratified by the Filipino people
and is therefore effective and in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal
of the Republic of the Philippines to be affixed.
DONE in the City of Manila, this 11th day of February, in the year of Our
Lord, Nineteen Hundred and Eighty-Seven.
(Sgd.) CORAZON C. AQUINO
By the President:
(SGD.) JOKER
P. ARROYO
Executive
Secretary

CERTIFICATE OF VOTES CAST IN THE FEBRUARY 2, 1987 PLEBISCITE


ON THE 1986 PROPOSED CONSTITUTION
We, the undersigned Chairman and Commissioners of the Commission on
Elections, sitting en banc at the Session Hall of the Commission on Elections,
Intramuros, Manila, Philippines, as the National Board of Canvassers for the
Plebiscite on the 1986 proposed Constitution held on February 2, 1987 do
hereby certify:
I PLEBISCITE QUESTION
That pursuant to Section 5, Article V of Proclamation No. 3 and Section 14 of
Proclamation No. 9, as amended, the following question was submitted to the
Filipino people:
QUESTION: DO YOU VOTE FOR THE RATIFICATION OF THE PROPOSED
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES WITH THE ORDINANCE
APPENDED THERETO?
II CANVASS
That on the basis of the certificates of canvass duly authenticated, certified
and submitted to the Commission on Elections by Seventy (70) Provincial
Boards Of Canvassers, and six (6) District Boards of Canvassers in , Metro
Manila, we publicly canvassed, with notice to, and in the presence of the
representatives of the major political parties and the citizens arm of the
Commission, the votes cast in the Plebiscite starting at 10:00 oclock a.m. on

February 4, 1987 and continuing everyday thereafter until 4:40 oclock P.M.
of February 7, 1987;
III DECLARATION OF RESULTS
That after said canvass, we hereby declare the results thereof to be as
follows:

tive Votes (YES)

Percent

111

76.30%

ve Votes (NO)

Percent

75

22.74%

tions

Percent

0.96%

QUESTION: DO YOU VOTE FOR THE RATIFICATION OF THE PROPOSED


CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES WITH THE ORDINANCE
APPENDED THERETO?
That the foregoing affirmative votes constitute a majority of the total number
of votes cast in Plebiscite;
That the above results, represent the returns from 83,288 out of 86,505
precincts throughout the country and 87.04% percent of the total number of
registered voters nationwide;

That when the Commission adjourned, only the certificates of canvess from
the provinces of Eastern Samar, Tawi-Tawi, Zamboanga del Sur, and Pagadian
City were still unreported and unaccounted for, representing a total of
509,173 registered voters, which can not affect the final outcome of the
Plebiscite.
IN WITNESS WHEREOF, We, the Chairman and Commissioners of the
Commission on Elections, have set our hands and caused the seal of the
Commission to be affixed hereunto in the City of Manila, Philippines, this 7th
day of February, 1987.
(SGD.) RAMON H. FELIPE, JR
Chairman
(SGD.)
LEOPOLDO L. AFRICA
Chairman
(SGD.) ANACLETO D. BADOY, JR.
Chairman
(SGD.) DARIO C. RAMA
Commissioner
(SGD.) HAYDEE B. YORAC
Commissioner
(SGD.) ANDRES R. FLORES
Commissioner
(SGD.) TOMAS V. DE LA CRUZ
Commissioner

ATTESTED:
(Sgd.) VICENTE B. DE LIMA
Source: CD Asia

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal,
HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from
replacing them from their respective positions as Barangay Captain and Barangay Councilmen of
Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino,
Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of
1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December
1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987
designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay,

Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local
Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December
1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina,
Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same
Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor,
the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20,
1986;
That as being OIC Governor of the Province of Rizal and in the performance of my
duties thereof, I among others, have signed as I did sign the unnumbered
memorandum ordering the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following
day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null
and void and that respondents be prohibited from taking over their positions of Barangay Captain
and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall
commence on June 7, 1982 and shall continue until their successors shall have elected and shall
have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the authority to replace them and to designate
their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the
aforequoted provision and not because their term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years
must be deemed to have been repealed for being inconsistent with the aforequoted provision of the
Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective officials under
the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence
of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or
not the designation of respondents to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should
be considered as the effective date of replacement and not December 1,1986 to which it was ante
dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision
in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII
of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the
autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly,
the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which
the barangays form a part, 3 and limits the President's power to "general supervision" over local
governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office
of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years
for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be
considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of


instructions, and other executive issuances not inconsistent, with this Constitution
shall remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ
of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over
of petitioners' positions subject of this Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ.,
concur.

Separate Opinions

TEEHANKEE, CJ., concurring:


The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect
on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that
same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or
reject it." This view was actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during

the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow:

MR. MAAMBONG. Madam President, may we now put to a vote the original
formulation of the committee as indicated in Section 12, unless there are other
commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-.
"THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And
on the last line, after "constitutions," add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is
going to propose an additional sentence, the committee would suggest that we take
up first his amendment to the first sentence as originally formulated. We are now
ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu
thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And the second amendment would be: After the word
"constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we
cannot accept the second proposed amendment after the word "constitutions"
because the committee feels that when we talk of all previous Constitutions,
necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam
President, may I request that I be allowed to read the second amendment so the
Commission would be able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE
MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS
BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the
committee feels that the second proposed amendment in the form of a new sentence
would not be exactly necessary and the committee feels that it would be too much for
us to impose a time frame on the President to make the proclamation. As we would
recall, Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be
a proclamation by the President that the Constitution has been ratified, the President
will naturally comply with the law in accordance with the provisions in the Article on
the Executive which we have cited. It would be too much to impose on the President
a time frame within which she will make that declaration. It would be assumed that
the President would immediately do that after the results shall have been canvassed
by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which
the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will
be an immediate proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the
amendment which makes the effectivity of the new Constitution dependent upon the
proclamation of the President. The effectivity of the Constitution should commence
on the date of the ratification, not on the date of the proclamation of the President.
What is confusing, I think, is what happened in 1976 when the amendments of 1976
were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation made by the
President. I have a suspicion that was put in there precisely to give the President
some kind of leeway on whether to announce the ratification or not. Therefore, we
should not make this dependent on the action of the President since this will be a
manifestation of the act of the people to be done under the supervision of the
COMELEC and it should be the COMELEC who should make the announcement
that, in fact, the votes show that the Constitution was ratified and there should be no
need to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly
when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the
votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President.
We present the Constitution to a plebiscite, the people exercise their right to vote,
then the votes are canvassed by the Commission on Elections. If we delete the
suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to
say that the plebiscite would be held, for instance, on January 19, 1987, then the
date for the effectivity of the new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the
results by the Commission on Elections which will be doing the canvass? That is
immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of
saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to
know from the proponent, Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot
subscribe to the view of Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That cannot be the date of
reckoning because it is a plebiscite all over the country. We do not split the moment
of casting by each of the voters. Actually and technically speaking, it would be all
right if it would be upon the announcement of the results of the canvass conducted
by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the
results of the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the
President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner
Davide. I support the stand of Commissioner Bernas because it is really the date of
the casting of the "yes" votes that is the date of the ratification of the Constitution
The announcement merely confirms the ratification even if the results are released
two or three days after. I think it is a fundamental principle in political law, even in civil
law, because an announcement is a mere confirmation The act of ratification is the
act of voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm the act
of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support
for Commissioner Bernas, because the canvass thereafter is merely
the mathematical confirmation of what was done during the date of the plebiscite and
the proclamation of the President is merely the official confirmatory declaration of an
act which was actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date
for the effectivity of the Constitution. Suppose the announcement is delayed by, say,
10 days or a month, what happens to the obligations and rights that accrue upon the
approval of the Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity
for the Commission on Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which
makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on
Elections has declared the results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the canvass as submitted by the
Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be
immaterial because under the law, the administration of all election laws is under an
independent Commission on Elections. It is the Commission on Elections which
announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the
Commission on Elections says, it would have no effect. I would only add that when
we say that the date of effectivity is on the day of the casting of the votes, what we
mean is that the Constitution takes effect on every single minute and every single
second of that day, because the Civil Code says a day has 24 hours.So that even if
the votes are cast in the morning, the Constitution is really effective from the
previous midnight.
So that when we adopted the new rule on citizenship, the children of Filipino mothers
or anybody born on the date of effectivity of the 1973 Constitution, which is January
17, 1973, are natural-born citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to the date
of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I
think it is precisely the proposal of Commissioner Bernas which speaks of the date
(of ratification that would have a definite date, because there would be no definite
date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the
COMELEC or the President, would announce that a majority of the votes cast on a
given date was in favor of the Constitution. And that is the date when the Constitution

takes effect, apart from the fact that the provision on the drafting or amendment of
the Constitution provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very beginning of the
date of election because as of that time it is impossible to determine whether there is
a majority. At the end of the day of election or plebiscite, the determination is made
as of that time-the majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered ratified and,
therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of
Commissioner Davide and I support the view of Commissioner Bernas and the
others because the ratification of the Constitution is on the date the people, by a
majority vote, have cast their votes in favor of the Constitution. Even in civil law, if
there is a contract, say, between an agent and a third person and that contract is
confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the
people have cast their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is
insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion
that it will be effective on the very day of the plebiscite, I am withdrawing my
amendment on the assumption that any of the following bodies the Office of the
President or the COMELEC will make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as
stated by the committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the
original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of
the votes cast in a plebiscite called for the purpose and shall supersede all previous
Constitutions.
We ask for a vote, Madam President.
VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several
Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved.

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987,
absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC
Governor could no longer exercise the power to replace petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer produce any legal
force and effect. While the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this period was shortened by
the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have so provided for in the Transitory Article,
as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the
President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the
Judicial and Bar Council created under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records
of the Department of Justice likewise show that the appointment papers of the last batch of provincial and
city fiscals signed by the President in completion of the reorganization of the prosecution service were
made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of
record that since February 2, 1987, no appointments to the Judiciary have been extended by the
President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared
by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect
than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur.
I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,
where I submitted that the local OICs may no longer be summarily replaced, having acquired
security of tenure under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice

Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not
that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new
Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not
February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For it
cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the
people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts
that would have been valid under the Provisional Constitution but would otherwise have been void
under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary
of Justice, and a representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector.

xxx xxx xxx


Sec. 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy, Such appointments need no
confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17,
1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now
Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article
XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all
amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976
and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by a majority of the votes cast in the
referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast
in the plebiscite held, together with the election for local officials, on January 30,
1980, and that said amendment is hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment
shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of
April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and
Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the
said amendments duly approved, further declared them "[e]ffective and in full force and in effect as
of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a majority of the
votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim
the result of the plebiscite using the certificates submitted to it, duly authenticated
and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January
27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions
Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this
Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas
Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the
Philippines shall proclaim that they have been ratified by a majority of the votes cast
in the plebiscite held for the purpose, but not later than three months from the
approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a
majority of the votes cast in an election/plebiscite at which it is submitted to the
people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as
amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on
September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention
of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11,
1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended thereto, has
been duly ratified by the Filipino people and is therefore effective and in full force and
effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other
time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter
was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was
said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution
came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.

Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect
on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that
same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or
reject it." This view was actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow:

MR. MAAMBONG. Madam President, may we now put to a vote the original
formulation of the committee as indicated in Section 12, unless there are other
commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-.
"THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And
on the last line, after "constitutions," add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is
going to propose an additional sentence, the committee would suggest that we take
up first his amendment to the first sentence as originally formulated. We are now
ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu
thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And the second amendment would be: After the word
"constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we
cannot accept the second proposed amendment after the word "constitutions"
because the committee feels that when we talk of all previous Constitutions,
necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam
President, may I request that I be allowed to read the second amendment so the
Commission would be able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE
MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS
BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the
committee feels that the second proposed amendment in the form of a new sentence
would not be exactly necessary and the committee feels that it would be too much for
us to impose a time frame on the President to make the proclamation. As we would
recall, Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be
a proclamation by the President that the Constitution has been ratified, the President
will naturally comply with the law in accordance with the provisions in the Article on
the Executive which we have cited. It would be too much to impose on the President
a time frame within which she will make that declaration. It would be assumed that
the President would immediately do that after the results shall have been canvassed
by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which
the Gentleman is proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will
be an immediate proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the
amendment which makes the effectivity of the new Constitution dependent upon the
proclamation of the President. The effectivity of the Constitution should commence
on the date of the ratification, not on the date of the proclamation of the President.
What is confusing, I think, is what happened in 1976 when the amendments of 1976
were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation made by the
President. I have a suspicion that was put in there precisely to give the President
some kind of leeway on whether to announce the ratification or not. Therefore, we
should not make this dependent on the action of the President since this will be a
manifestation of the act of the people to be done under the supervision of the
COMELEC and it should be the COMELEC who should make the announcement
that, in fact, the votes show that the Constitution was ratified and there should be no
need to wait for any proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?


FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly
when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the
votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President.
We present the Constitution to a plebiscite, the people exercise their right to vote,
then the votes are canvassed by the Commission on Elections. If we delete the
suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to
say that the plebiscite would be held, for instance, on January 19, 1987, then the
date for the effectivity of the new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the
results by the Commission on Elections which will be doing the canvass? That is
immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of
saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to
know from the proponent, Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot
subscribe to the view of Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That cannot be the date of
reckoning because it is a plebiscite all over the country. We do not split the moment
of casting by each of the voters. Actually and technically speaking, it would be all
right if it would be upon the announcement of the results of the canvass conducted
by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the
results of the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the
President.
xxx xxx xxx

MR. NOLLEDO. Madam President.


THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner
Davide. I support the stand of Commissioner Bernas because it is really the date of
the casting of the "yes" votes that is the date of the ratification of the Constitution
The announcement merely confirms the ratification even if the results are released
two or three days after. I think it is a fundamental principle in political law, even in civil
law, because an announcement is a mere confirmation The act of ratification is the
act of voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm the act
of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support
for Commissioner Bernas, because the canvass thereafter is merely
the mathematical confirmation of what was done during the date of the plebiscite and
the proclamation of the President is merely the official confirmatory declaration of an
act which was actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date
for the effectivity of the Constitution. Suppose the announcement is delayed by, say,
10 days or a month, what happens to the obligations and rights that accrue upon the
approval of the Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity
for the Commission on Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which
makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on
Elections has declared the results of the canvass, will there be a necessity for the

President to make a proclamation of the results of the canvass as submitted by the


Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be
immaterial because under the law, the administration of all election laws is under an
independent Commission on Elections. It is the Commission on Elections which
announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the
Commission on Elections says, it would have no effect. I would only add that when
we say that the date of effectivity is on the day of the casting of the votes, what we
mean is that the Constitution takes effect on every single minute and every single
second of that day, because the Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really effective
from the previous midnight. So that when we adopted the new rule on citizenship, the
children of Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no matter what
time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to the date
of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I
think it is precisely the proposal of Commissioner Bernas which speaks of the date
(of ratification that would have a definite date, because there would be no definite
date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.


Whoever makes the announcement as to the result of the plebiscite, be it the
COMELEC or the President, would announce that a majority of the votes cast on a
given date was in favor of the Constitution. And that is the date when the Constitution
takes effect, apart from the fact that the provision on the drafting or amendment of
the Constitution provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very beginning of the
date of election because as of that time it is impossible to determine whether there is
a majority. At the end of the day of election or plebiscite, the determination is made
as of that time-the majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered ratified and,
therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of
Commissioner Davide and I support the view of Commissioner Bernas and the
others because the ratification of the Constitution is on the date the people, by a
majority vote, have cast their votes in favor of the Constitution. Even in civil law, if
there is a contract, say, between an agent and a third person and that contract is
confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the
people have cast their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is
insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion
that it will be effective on the very day of the plebiscite, I am withdrawing my
amendment on the assumption that any of the following bodies the Office of the
President or the COMELEC will make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as
stated by the committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the
original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of
the votes cast in a plebiscite called for the purpose and shall supersede all previous
Constitutions.

We ask for a vote, Madam President.


VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several
Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved.

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987,
absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC
Governor could no longer exercise the power to replace petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer produce any legal
force and effect. While the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this period was shortened by
the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have so provided for in the Transitory Article,
as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the
President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the
Judicial and Bar Council created under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records
of the Department of Justice likewise show that the appointment papers of the last batch of provincial and
city fiscals signed by the President in completion of the reorganization of the prosecution service were
made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of
record that since February 2, 1987, no appointments to the Judiciary have been extended by the
President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared
by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect
than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur.
I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,

where I submitted that the local OICs may no longer be summarily replaced, having acquired
security of tenure under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice
Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not
that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new
Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not
February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For it
cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the
people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts
that would have been valid under the Provisional Constitution but would otherwise have been void
under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary

of Justice, and a representative of the Congress as ex oficio Members, a


representative of the Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy, Such appointments need no
confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17,
1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now
Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article
XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all
amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum plebiscite held Oct. 16-17, 1976
and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by a majority of the votes cast in the
referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast
in the plebiscite held, together with the election for local officials, on January 30,
1980, and that said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment
shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of
April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and
Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the
said amendments duly approved, further declared them "[e]ffective and in full force and in effect as
of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:
... shall become valid as part of the Constitution when approved by a majority of the
votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the
Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim
the result of the plebiscite using the certificates submitted to it, duly authenticated
and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January
27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions
Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this
Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas
Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the
Philippines shall proclaim that they have been ratified by a majority of the votes cast
in the plebiscite held for the purpose, but not later than three months from the
approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the
votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant
to Section 2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on
September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention
of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended thereto, has
been duly ratified by the Filipino people and is therefore effective and in full force and
effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other
time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter
was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was
said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution
came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.
Footnotes
1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the Constitutional Commission Proceedings and Debates,
pages 620-623; emphasis supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty forty-five
votes in favor and two against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo,
Minerva G. Reyes, Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena

Jr. and Justo P. Torres, Jr., and their appointments bear various dates from January
9, 1987 to January 31, 1987.
Sarmiento, J., dissenting:
1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987,
p. 1, cot 1; Malaya, Feb. 3, 1987, p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4 Proclamation No. 58 (1987).
5 G.R. No. 72301.

Republic of the Philippines


SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TA;ADA, 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, ETC., ET AL.,respondents.
RESOLUTION

CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of presidential
decrees which they claimed had not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was "otherwise provided," as when
the decrees themselves declared that they were to become effective immediately upon their
approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the
publication of some of these decrees, declaring in the dispositive portion as follows:
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.
The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction between laws
of general applicability and those which are not; that publication means complete publication; and
that the publication must be made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for
an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is
otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not
always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and
that in any case the subject decision was concurred in only by three justices and consequently not
binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the
Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule
3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the
internal administration of a government agency or for particular persons did not have to be 'Published;
that publication when necessary must be in full and in the Official Gazette; and that, however, the decision
under reconsideration was not binding because it was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year
after such publication.

After a careful study of this provision and of the arguments of the parties, both on the original petition
and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present
Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not
become effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed with altogether.
The reason. is that such omission would offend due process insofar as it would deny the public
knowledge of the laws that are supposed to govern the legislature could validly provide that a law e
effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result and they would be so not because of a failure to comply with but simply
because they did not know of its existence, Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on prescription, which
must also be communicated to the persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of course
presupposes that the law has been published if the presumption is to have any legal justification at
all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this certainly applies to, among others, and
indeed especially, the legislative enactments of the government.
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 the courts of justice. In fact, a law without any
bearing on the public would be invalid as an intrusion of privacy or as class legislation or as anultra
vires act of the legislature. To be valid, the law must invariably affect the public interest even if it
might be directly applicable only to one individual, or some of the people only, and t to the public as
a whole.
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in
the exercise of legislative powers whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. administrative rules and regulations must a also be
published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required
of the so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All presidential
decrees must be published, including even, say, those naming a public place after a favored
individual or exempting him from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to interpret but to "fill in the details"
of the Central Bank Act which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social Welfare
on the case studies to be made in petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his personnel or the wearing of office
uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local
Government Code.
We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos administration. 7 The evident
purpose was to withhold rather than disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were categorically for publication
in the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the need
for due publication without indicating where it should be made. 11 It is therefore necessary for the present
membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision
supported by the necessary vote.
There is much to be said of the view that the publication need not be made in the Official Gazette,
considering its erratic releases and limited readership. Undoubtedly, newspapers of general
circulation could better perform the function of communicating, the laws to the people as such
periodicals are more easily available, have a wider readership, and come out regularly. The trouble,
though, is that this kind of publication is not the one required or authorized by existing law. As far as
we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not
pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet
been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if
we find it impractical. That is not our function. That function belongs to the legislature. Our task is
merely to interpret and apply the law as conceived and approved by the political departments of the
government in accordance with the prescribed procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official

Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such
publication or after a different period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon as possible, to give
effect to the law pursuant to the said Article 2. There is that possibility, of course, although not
suggested by the parties that a law could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as required. This is a matter, however, that
we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an open
society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review the work of
their delegates and to ratify or reject it according to their lights, through their freedom of expression
and their right of suffrage. This they cannot do if the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with
their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as
binding unless their existence and contents are confirmed by a valid publication intended to make
full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that
cannot feint parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become
effective only after fifteen days from their publication, or on another date specified by the legislature,
in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ.,
concur.

Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa,
I took a strong stand against the insidious manner by which the previous dispensation had
promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc.
Never has the law-making power which traditionally belongs to the legislature been used and

abused to satisfy the whims and caprices of a one-man legislative mill as it happened in the past
regime. Thus, in those days, it was not surprising to witness the sad spectacle of two presidential
decrees bearing the same number, although covering two different subject matters. In point is the
case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting
Philippine citizenship to Michael M. Keon the then President's nephew and the other imposing a tax
on every motor vehicle equipped with airconditioner. This was further exacerbated by the issuance of
PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey
Moore and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At
the same time, I wish to add a few statements to reflect my understanding of what the Court is
saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need
of publication. For so to interpret such statute would be to collide with the constitutional obstacle
posed by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section
35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.

Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa,
I took a strong stand against the insidious manner by which the previous dispensation had

promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc.
Never has the law-making power which traditionally belongs to the legislature been used and
abused to satisfy the whims and caprices of a one-man legislative mill as it happened in the past
regime. Thus, in those days, it was not surprising to witness the sad spectacle of two presidential
decrees bearing the same number, although covering two different subject matters. In point is the
case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting
Philippine citizenship to Michael M. Keon the then President's nephew and the other imposing a tax
on every motor vehicle equipped with airconditioner. This was further exacerbated by the issuance of
PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey
Moore and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At
the same time, I wish to add a few statements to reflect my understanding of what the Court is
saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need
of publication. For so to interpret such statute would be to collide with the constitutional obstacle
posed by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section
35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.
Footnotes
1 Rollo pp. 242-250.
2 Ibid, pp. 244-248.
3 Id, pp. 271-280.

4 Id, pp. 288-299.


5 Id, pp. 320-322.
6 136 SCRA 27,46.
7 Rollo, p. 24,6.
8 Justices Venicio Escolin (ponente), Claudio Teehankee. Ameurfina Melencio-Herrera, and
Lorenzo Relova.
9 Chief Justice Enrique M. Fernando and Justices Felix V. Makasiar, Vicente Abad-Santos,
Efren 1. Plana Serafin P. Cuevas. and Nestor B. Alampay.
10 Justice Hugo E. Gutierrez, Jr.
11 Justice B. S. de la Fuente.

Executive Order No. 200, s. 1987


Signed on June 18, 1987

MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
EXECUTIVE ORDER NO. 200
PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL
GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE
PHILIPPINES AS A REQUIREMENT FOR THEIR EFFECTIVITY.
WHEREAS, Article 2 of the Civil Code partly provides that laws shall take
effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided x x x;
WHEREAS, the requirement that for laws to be effective only a publication
thereof in the Official Gazette will suffice has entailed some problems, a
point recognized by the Supreme Court in Taada, et al. vs. Tuvera, et al.
(G.R. No. 63915, December 29, 1986), when it observed that [t]here is
much to be said of the view that the publication need not be made in the
Official Gazette, considering its erratic release and limited readership;
WHEREAS, it was likewise observed that [u]ndoubtedly, newspapers of
general circulation could better perform the function of communicating the
laws to the people as such periodicals are more easily available, have a
wider readership, and come out regularly; and
WHEREAS, in view of the foregoing premises Article 2 of the Civil Code
should accordingly be amended so the laws to be effective must be
published either in the Official Gazette or in a newspaper of general
circulation in the country;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by
virtue of the powers vested in me by the Constitution, do hereby order:
SECTION 1. Laws shall take effect after fifteen days following the completion
of their publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided.
SEC. 2. Article 2 of Republic Act No. 386, otherwise known as the Civil Code
of the Philippines, and all other laws inconsistent with this Executive Order
are hereby repealed or modified accordingly.

SEC. 3. This Executive Order shall take effect immediately after its
publication in the Official Gazette.
Done in the City of Manila, this 18th day of June, in the year of Our Lord,
nineteen hundred and eighty-seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary
Source: Presidential Management Staf
Office of the President of the Philippines. (1987). [Executive Order Nos. : 171390]. Manila : Presidential Management Staff.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 122156 February 3, 1997


MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos, 1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily,
they ask whether the 51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and
Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number
of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract

specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated
10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong
Berhad . . . 5 which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of
respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the
term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified

Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision
and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimonyof the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the
nation. 10 It prescribes the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to which all
other laws must conform and in accordance with which all private rights must be determined and all public
authority administered.11 Under the doctrine of constitutional supremacy, if a law or contract violates any
norm of the constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any force and

effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not selfexecuting. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather than
non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not selfexecuting, as they quote from discussions on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is
it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use
the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be

done. For example, qualifications on the setting up of other financial


structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in
the absence of such legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be
self-executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available. 17 Subsequent
legislation however does not necessarily mean that the subject constitutional provision is not, by itself,
fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of enterprises fully
owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not by its language require
any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision may be selfexecuting in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional provisions
on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-building 23 the
promotion of social justice, 24 and the values of education.25 Tolentino v. Secretary of Finance 26 refers to
the constitutional provisions on social justice and human rights 27 and on education. 28 Lastly, Kilosbayan,
Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the
vital role of the youth in nation-building 32 and the promotion of total human liberation and
development.33 A reading of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing

laws or rules for its enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per sejudicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as
the Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City. 37During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected by
the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failedcoup d' etat where an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that theFilipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands. 38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED
BY SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say
that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment


be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos"
here, as intended by the proponents, will include not only individual
Filipinos but also Filipino-controlled entities or entities fully-controlled
by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus

MR. FOZ. Madam President, I would like to request Commissioner


Nolledo to please restate his amendment so that I can ask a
question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL THE
STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the
so-called "Filipino First" policy. That means that Filipinos should be given preference
in the grant of concessions, privileges and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be
chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel industry, or it has significant equity

ownership in another hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision by the government itself is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly involved with
the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact
a transaction of the State and therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which
are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of

shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over nonmaterial values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nationstate can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak

the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:


I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:

xxx xxx xxx


In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3
Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7
Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must
refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not

preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine
corporation can be given preference in the enjoyment of a right, privilege or concession given by the
State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8
Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing
with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

For the foregoing reasons, I vote to grant the petition.


TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:


MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J., dissenting:


This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION


The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila


Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of


Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is ThirtySix Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned


immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and


"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to

purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that

have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it


has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.
The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8
Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring
future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily
ignored and nullified by Congress. 11Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but congressional in action should not suffocate
them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection
of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation. 18
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II
of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as
mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on
"Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts,
Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed
to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy
content. 24
Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by

such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of whollyowned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving

our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As stateowned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general
welfare of the people. One of these policies is the Filipino First policy which the people elevated as a
constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx


THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As against
aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from

granting these rights, privileges and concessions to foreigners if the act will promote the weal of the
nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policymakers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state policy.
Within the limits of their authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:


I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the

global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3
Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.

This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7
Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must
refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine
corporation can be given preference in the enjoyment of a right, privilege or concession given by the
State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of
stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. 9Indeed, in vital areas of our national economy, there are
situations in which the only way to place Filipinos in control of the national economy as contemplated in
the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing
with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of
government property, which is like the grant of government largess of benefits and concessions covering
the national economy" and therefore no one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by
the Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is
sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be
allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who
have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,


Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J., dissenting:


This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or

c. Overall management and marketing expertise to


successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.

B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is ThirtySix Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of


the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement


with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management


Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and


COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.


The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. 7 The inquiry demands a micro-analysis of the text and the context of the provision in
question. 8
Courts as a rule consider the provisions of the Constitution as self-executing, 9 rather than as requiring
future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated
as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily
ignored and nullified by Congress. 11Suffused with wisdom of the ages is the unyielding rule that
legislative actions may give breath to constitutional rights but congressional in action should not suffocate
them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, 13the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the
privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection
of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation. 18
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II
of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as
mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on
"Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts,
Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed
to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy
content. 24
Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national

economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of whollyowned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in
the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain
areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10
affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To
be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of
indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the
employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are
allowed to be invested in business and other ventures for the benefit of the employees. 36 It is thus
contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence,
an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As stateowned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general
welfare of the people. One of these policies is the Filipino First policy which the people elevated as a
constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As against
aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,

qualifications on the setting up of other financial


structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from
granting these rights, privileges and concessions to foreigners if the act will promote the weal of the
nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policymakers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state policy.
Within the limits of their authority, they can act or promulgate rules and regulations defining the
degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:


I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
Footnotes
1 See Sec. 10, par. 2, Art. XII, 1987 Constitution
2 Par I. Introduction and Highlights; Guidelines and Procedures: Second
Prequailifications and Public Bidding of the MHC Privatization; Annex "A,"
Consolidated Reply to Comments of Respondents; Rollo, p. 142.
3 Par. V. Guidelines for the Public Bidding, id., pp. 153-154.
4 Annex "A," Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp. 13-14.
5 Annex "B," Petition for Prohibition and Mandamus with Temporary Restraining
Order; id., p. 15.
6 Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 56; id., pp. 6-7.
7 Consolidated Reply to Comments of Respondents, p. 17; id., p. 133.
8 Par. V.J. 1, Guidelines for Public Bidding, Guidelines and Procedures: second
Prequalifications and Public Bidding of the MHC Privatization, Annex "A,"
Consolidated Reply to Comments of Respondents; id., p. 154.
9 Respondents' Joint Comment with Urgent Motion to Lift Temporary Restraining
Order, p. 9; Rollo, p. 44.
10 Marbury v. Madison, 5, U.S. 138 (1803).
11 Am Jur. 606.
12 16 Am Jur. 2d 281.
13 Id., p. 282.
14 See Note 12.
15 Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
16 Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
17 16 Am Jur 2d 283-284.
18 Sec. 10, first par., reads: The Congress shall, upon recommendation of the
economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per

centum of whose capital is owned by such citizens, or such higher percentage as


Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals
and priorities.
19 State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 SW2d 319.
20 G.R. No. 91649, 14 May 1991, 197 SCRA 52.
21 Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he
State values the dignity of every human person and guarantees full respect for
human rights.
22 Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
government.
23 Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
24 Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress
shall give highest priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and selfreliance.
25 Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
(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;

(3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both
public and private schools, especially to the underprivileged.
(4) Encourage non-formal, informal, and indegenous learning, independent, and outof-school study programs particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
26 G.R. 115455, 25 August 1994, 235 SCRA 630.
27 See Note 25.
28 Sec. 1 Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps
to make such education accessible to all.
29 G.R. No. 118910, 17 July 1995.
30 Sec. 5 Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.
31 See Note 23.
32 See Note 24.
33 Sec. 17, Art II, provides that [t]he State shall give priority to education, science
and technology, arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and development.
34 Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p.
72.
35 Webster's Third New International Dictionary, 1986 ed., p. 1656.
36 The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President
Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President
Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister
Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President
Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm
Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister
Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President
Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia,
Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan
Hassanal Bolkiah of Brunei, President Ramaswani Venkataraman of India, Prime
Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile,

Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi


Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia,
President Kim President Young Sam of Korea, Princess Infanta Elena of Spain,
President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia,
King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, President Frei Ruiz Tagle of Chile, President Le Duc Anh
of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see
Memorandum for Petitioner, pp. 16-19.
37 Authored by Beth Day Romulo.
38 See Note 9, pp. 15-16; Rollo, pp. 50-51.
39 Record of the Constitutional Commission. Vol. 3, 22 August 1986. p. 607.
40 Id., p. 612.
41 Id., p. 616.
42 Id., p. 606.
43 Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.
930-931.
44 Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.
45 Memorandum of Fr. Joaquin G. Bernas, S.J., p. 6.
46 Id., pp. 3-4.
47 See Note 8.
48 Keynote Address at the ASEAN Regional Symposium of Enforcement of Industrial
Property Rights held 23 October 1995 at New World Hotel, Makati City.
49 Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers
and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top,
Hotel Intercontinental, Makati City.
50 Memorandum of Authorities submitted by former Chief Justice Enrique M.
Fernando, p. 5.
51 8 March 1996 issue of Philippine Daily Inquirer, p. B13.
PADILLA, J., concurring:

1 Article XII, Section 10, par. 2, 1987 Constitution.


2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.
3 Sinco, Philippine Political Law, 11th ed, p. 112.
4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.
507.
7 Id., p. 562.
VITUG, J., concurring:
1 Second par. Section 10, Art. XII, 1987 Constitution.
MENDOZA, J., concurring:
1 Art. XII, 10, second paragraph.
2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND PUBLIC
BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as GUIDELINES),
Part. V, par. H(4)..
3 Id.
4 83 Phil. 242 (1949).
5 R.A. No. 37, 1.
6 87 Phil. 343 (1950).
7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse discrimination in these
areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, 19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).

12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:
a. Business management expertise, tract record, and experience
b. Financial capability
c. Feasibility and acceptability of the proposed strategic plan for the
Manila Hotel.
13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.
14 Id., Part V, par. V (1).
PUNO, J., dissenting:
1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents,Rollo, p. 142.
2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.
3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140155.
4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.

11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann. Cas.
1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of Supervisors,
67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.
13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and a
host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24 SCRA
663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64 Phil, 485
[1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v. Mitchell,
207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth Decennial
Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.
18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill. App.
2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d 178
[1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City of
Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.

25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.
26 Or such higher percentage as Congress may prescribe.
27 Article XIV, section 3 of the 1973 Constitution reads:
"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National
Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichongcase upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.
30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).
31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee
celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property as a .national cultural
treasure," the following procedure shall be observed:
(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty days
and subsequently again denied by the panel, may be further appealed to another
panel chairmanned by the Secretary of Education with two experts as members
appointed by the Secretary of Education. Their decision shall final and binding.

(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.
xxx xxx xxx
33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.
34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];
Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].
35 Id., secs. 28 and 29.
36 Id., Sec. 30.
37 Constitution, Article IX (B), section 2 (1).
38 Constitution, Article IX (D), section 2 (1).
39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . .
in activities which significantly contribute to national industrialization and socioeconomic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 161872

April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17,
2003. Respondent Commission on Elections (COMELEC) refused to give due course to
petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The
decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol
K. Sadain voted to include petitioner as they believed he had parties or movements to back up his
candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558. Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed by other
aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution
No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others
nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a
political party or are not supported by a registered political party with a national constituency.
Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had
retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section
26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential candidates, i.e., he
possesses all the constitutional and legal qualifications for the office of the president, he is capable
of waging a national campaign since he has numerous national organizations under his leadership,
he also has the capacity to wage an international campaign since he has practiced law in other
countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for
theCertificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for determining the qualifications of candidates since it does
not ask for the candidates bio-data and his program of government.
First, the constitutional and legal dimensions involved.

Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is none. What is recognized is
merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution
neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a thrust or justifies an
interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration
of Principles and State Policies." The provisions under the Article are generally considered not selfexecuting,2 and there is no plausible reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before the courts. 4
An inquiry into the intent of the framers5 produces the same determination that the provision is not
self-executory. The original wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties." 6 Commissioner (now Chief
Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service."
He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important
would be equal access to the opportunity. If you broaden, it would necessarily mean that
the government would be mandated to create as many offices as are possible to
accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to
make the government the number one employer and to limit offices only to what may
be necessary and expedient yet offering equal opportunities to access to it, I change
the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide
amendment" indicates the design of the framers to cast the provision as simply enunciatory of a
desired policy objective and not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its
effective means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless interpretations owing to
their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people
an operative but amorphous foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel aCertificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the equal
access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the

limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the
case at bar, there is no showing that any person is exempt from the limitations or the burdens which
they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the
Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The State
has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources in preparation for the
election. These practical difficulties should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As
the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization and its
candidates on the ballot the interest, if no other, in avoiding confusion, deception and even
frustration of the democratic [process].11
The COMELEC itself recognized these practical considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January
2004. As observed in the COMELECs Comment:
There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to be
printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage
a decent campaign enough to project the prospect of winning, no matter how slim. 12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place, 13 watchers in the board of canvassers,14 or
even the receipt of electoral contributions.15Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even more
galling. The organization of an election with bona fide candidates standing is onerous enough. To
add into the mix candidates with no serious intentions or capabilities to run a viable campaign would

actually impair the electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae
covering every step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on
gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling
State interest to ensure orderly and credible elections by excising impediments thereto, such as
nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated
by the Constitution with the administration of elections16 and endowed with considerable latitude in
adopting means and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona fidecandidates for public office
shall be free from any form of harassment and discrimination.18 The determination ofbona
fide candidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in
the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in the case
of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it.
The assailed resolutions of the COMELEC do not direct the Court to the evidence which it
considered in determining that petitioner was a nuisance candidate. This precludes the Court from
reviewing at this instance whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into account the matters which
the COMELEC considered in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing
his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts,
can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor
the Solicitor General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual. The
basis of the factual determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the
government. It deserves not a cursory treatment but a hearing which conforms to the requirements
of due process.
As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say
that the form strictly complies with Section 74 of the Omnibus Election Code. This provision
specifically enumerates what a certificate of candidacy should contain, with the required information
tending to show that the candidate possesses the minimum qualifications for the position aspired for
as established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to
the COMELEC for the reception of further evidence, to determine the question on whether petitioner
Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus
Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to
this Court with deliberate dispatch.
SO ORDERED.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes
*

On Official Leave.

Sec. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.
1

See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc.
v. Morato, G.R. No. 118910, 246 SCRA 540, 564. "A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually not selfexecuting." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997, 267 SCRA 408,
431. "Accordingly, [the Court has] held that the provisions in Article II of our Constitution
entitled "Declaration of Principles and State Policies" should generally be construed as mere
statements of principles of the State." Justice Puno, dissenting, Manila Prince Hotel v.
GSIS, Id. at 474.
2

See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138.
Manila Prince Hotel v. GSIS, supra note 2 at 436.
3

Kilosbayan, Inc. v. Morato, supra note 2.

"A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion
and enforcement. The inquiry demands a micro-analysis and the context of the provision in
question." J. Puno, dissenting, Manila Prince Hotel v. GSIS, supra note 2.
5

J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.

IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.

See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224
SCRA 792, 815.
8

Section 69. Nuisance Candidates. The Commission may, motu proprio or upon a verified
petition of an interested party, refuse to give due course or cancel a certificate of candidacy if
it is shown that said certificate has been filed to put the election process in mockery or
disrepute or to cause confusion among the voters by the similarity of the names of the
registered candidates or by other circumstances or acts which clearly demonstrate that the
candidate has no bona fide intention to run for the office for which the certificate of candidacy
has been filed and thus prevent a faithful determination of the true will of the electorate.
9

SEC. 6. Motu Proprio Cases. The Commission may, at any time before the election,
motu proprio refuse to give due course to or cancel a certificate of candidacy of any
candidate for the positions of President, Vice-President, Senator and Party-list:
10

I. The grounds:
a. Candidates who, on the face of their certificate of candidacy, do not
possess the constitutional and legal qualifications of the office to which they
aspire to be elected;
b. Candidate who, on the face of said certificate, filed their certificate of
candidacy to put the election process in mockery or disrepute;
c. Candidates whose certificate of candidacy could cause confusion among
the voters by the similarity of names and surnames with other candidates;
and
d. Candidates who have no bona fide intention to run for the office for which
the certificate of candidacy had been filed or acts that clearly demonstrate
the lack of such bona fide intention, such as:
d.1 Candidates who do not belong to or are not nominated by any
registered political party of national constituency;
d.2 Presidential, Vice-Presidential [candi-dates] who do not present
running mates for vice-president, respectively, nor senatorial
candidates;
d.3 Candidates who do not have a platform of government and are
not capable of waging a nationwide campaign.
11

Jenness v. Fortson, 403 U.S. 431 (1971).

12

Rollo, pp. 469.

13

See Section 178, Omnibus Election Code, as amended.

14

See Section 239, Omnibus Election Code, as amended.

15

See Article XI, Omnibus Election Code, as amended.

16

See Section 2(1), Article IX, Constitution.

Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27
April 1967, 19 SCRA 911.
17

18

See Section 9, Article IX, Constitution.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 196271

February 28, 2012

DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of


MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI
MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI,
MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH
SAUPI, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE
OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON
ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the
President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO
TAN, Treasurer of the Philippines,Respondents.
x-----------------------x
G.R. No. 196305
BASARI D. MAPUPUNO, Petitioner,
vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections,
FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and
Management, PAQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE
ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as
Speaker of the House of Representatives, Respondents.
x-----------------------x
G.R. No. 197221
REP. EDCEL C. LAGMAN, Petitioner,
vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION
ON ELECTIONS, Respondents.
x-----------------------x
G.R. No. 197280
ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners,
vs.
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD,

JR., in his capacity as Secretary of the Department of Budget and Management, and HON.
ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, Respondents.
x-----------------------x
G.R. No. 197282
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., Respondents.
x-----------------------x
G.R. No. 197392
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., Respondents.
x-----------------------x
G.R. No. 197454
JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE COMMISSION ON
ELECTIONS, Respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.
RESOLUTION
BRION, J.:
We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al. in
G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel Lagman in G.R.
No. 197221; (c) the ex abundante ad cautelam motion for reconsideration filed by petitioner Basari
Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty. Romulo
Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by petitioners Almarim Centi
Tillah, Datu Casan Conding Cana and Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No.
197280; (f) the manifestation and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No.
197280; and (g) the very urgent motion to issue clarificatory resolution that the temporary restraining
order (TRO) is still existing and effective.
These motions assail our Decision dated October 18, 2011, where we upheld the constitutionality of
Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of synchronization, RA No.
10153 postponed the regional elections in the Autonomous Region in Muslim Mindanao (ARMM)
(which were scheduled to be held on the second Monday of August 2011) to the second Monday of

May 2013 and recognized the Presidents power to appoint officers-in-charge (OICs) to temporarily
assume these positions upon the expiration of the terms of the elected officials.
The Motions for Reconsideration
The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:
I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM ELECTIONS
ARE LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION GIVES THE ARMM
A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL
GOVERNMENT UNITS.
II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.
III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE NOT
IRREPEALABLE LAWS.
IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18, ARTICLE
X OF THE CONSTITUTION.
V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.]1
The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM
CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL
GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A)
THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND (B) THE
ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND AUTONOMY,
AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM TRADITIONAL LGUs.
II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN
ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND LEGISLATIVE
ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE
PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR TEMPORARY,
FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR AND MEMBERS OF
THE REGIONAL ASSEMBLY.
III. THE PRESIDENTS APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS
AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY
VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING THE
AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING ELECTIVE
POSITIONS.
IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM ELECTED
OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR SUCCESSORS.
V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS WHOSE
TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT
PRESCRIBED BY THE ORGANIC ACTS.

VI. THE REQUIREMENT OF A SUPERMAJORITY OF VOTES IN THE HOUSE OF


REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN
IRREPEALABLE LAW.
VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT UNDULY EXPAND
THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION.
VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND LOCAL
ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.
IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL
ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING COMELECS
HOLDING OF SPECIAL ELECTIONS.2 (italics supplied)
The petitioner in G.R. No. 196305 further asserts that:
I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A
CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS
LANGUAGE.
THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS: THEY
REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS, AND APPLYING
THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE SUPREME COURT
MAY HAVE VIOLATED THEFOREMOST RULE IN STATUTORY CONSTRUCTION.
xxxx
II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN
ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.
xxxx
III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN
DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.
xxxx
IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN HOLDING
THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC ACT.
xxxx
V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE
HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.

xxxx
VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING THE
APPOINTMENT OF OFFICERS-IN-CHARGE.3 (italics and underscoring supplied)
The petitioner in G.R. No. 197282 contends that:
A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE
REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN
WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A
FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL
GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A
PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE
REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE
PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN "INTERIM
MEASURE".
B.
THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE
PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE
OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE
CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN
ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID
INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS
SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF
R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL
ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL OFFICIALS
OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE
MAY 2013 SYNCHRONIZED ELECTIONS.4
Finally, the petitioners in G.R. No. 197280 argue that:
a) the Constitutional mandate of synchronization does not apply to the ARMM elections;
b) RA No. 10153 negates the basic principle of republican democracy which, by
constitutional mandate, guides the governance of the Republic;
c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with the
2/3 vote from the House of Representatives and the Senate, voting separately, and be
ratified in a plebiscite;

d) if the choice is between elective officials continuing to hold their offices even after their
terms are over and non-elective individuals getting into the vacant elective positions by
appointment as OICs, the holdover option is the better choice;
e) the President only has the power of supervision over autonomous regions, which does not
include the power to appoint OICs to take the place of ARMM elective officials; and
f) it would be better to hold the ARMM elections separately from the national and local
elections as this will make it easier for the authorities to implement election laws.
In essence, the Court is asked to resolve the following questions:
(a) Does the Constitution mandate the synchronization of ARMM regional elections with
national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply with
the supermajority vote and plebiscite requirements?
(c) Is the holdover provision in RA No. 9054 constitutional?
(d) Does the COMELEC have the power to call for special elections in ARMM?
(e) Does granting the President the power to appoint OICs violate the elective and
representative nature of ARMM regional legislative and executive offices?
(f) Does the appointment power granted to the President exceed the Presidents supervisory
powers over autonomous regions?
The Courts Ruling
We deny the motions for lack of merit.
Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates the synchronization of national
and local elections. While the Constitution does not expressly instruct Congress to synchronize the
national and local elections, the intention can be inferred from the following provisions of the
Transitory Provisions (Article XVIII) of the Constitution, which state:
Section 1. The first elections of Members of the Congress under this Constitution shall be held on
the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which may be
simultaneous with the election of the Members of the Congress. It shall include the election of all
Members of the city or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives, and the local officials first
elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of
votes shall serve for six years and the remaining twelve for three years.
xxxx
Section 5. The six-year term of the incumbent President and Vice-President elected in the February
7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June
30, 1992.
The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.
To fully appreciate the constitutional intent behind these provisions, we refer to the discussions of the
Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily
indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL
SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."
This was presented by Commissioner Davide, so may we ask that Commissioner Davide be
recognized.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.
MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action
taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as
follows: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE
LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON
OF JUNE 30, 1992."
I proposed this because of the proposed section of the Article on Transitory Provisions giving a term
to the incumbent President and Vice-President until 1992. Necessarily then, since the term provided
by the Commission for Members of the Lower House and for local officials is three years, if there will
be an election in 1987, the next election for said officers will be in 1990, and it would be very close to
1992. We could never attain, subsequently, any synchronization of election which is once every
three years.
So under my proposal we will be able to begin actual synchronization in 1992, and
consequently, we should not have a local election or an election for Members of the Lower House in
1990 for them to be able to complete their term of three years each. And if we also stagger the
Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will
be an election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their
term is for six years, their election will be in 1993. So, consequently we will have elections in 1990, in
1992 and in 1993. The later election will be limited to only 12 Senators and of course to the local
officials and the Members of the Lower House. But, definitely, thereafter we can never have an
election once every three years, therefore defeating the very purpose of the Commission when we
adopted the term of six years for the President and another six years for the Senators with the
possibility of staggering with 12 to serve for six years and 12 for three years insofar as the first
Senators are concerned.And so my proposal is the only way to effect the first synchronized

election which would mean, necessarily, a bonus of two years to the Members of the Lower
House and a bonus of two years to the local elective officials.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of elections, I was the one who
proposed that in order to synchronize the elections every three years, which the body approved
the first national and local officials to be elected in 1987 shall continue in office for five years, the
same thing the Honorable Davide is now proposing. That means they will all serve until 1992,
assuming that the term of the President will be for six years and continue beginning in 1986. So from
1992, we will again have national, local and presidential elections. This time, in 1992, the
President shall have a term until 1998 and the first 12 Senators will serve until 1998, while the
next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995.
From then on, we shall have an election every three years.
So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our
elections every three years which was already approved by the body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President
and Vice-President in 1992.
MR. DAVIDE. Yes.
MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators
and local officials with the election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that
the provision of the Transitory Provisions on the term of the incumbent President and Vice-President
would really end in 1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President
up to the municipal officials.5 (emphases and underscoring ours)
The framers of the Constitution could not have expressed their objective more clearly there was to
be a single election in 1992 for all elective officials from the President down to the municipal
officials. Significantly, the framers were even willing to temporarily lengthen or shorten the terms of
elective officials in order to meet this objective, highlighting the importance of this constitutional
mandate.

We came to the same conclusion in Osmea v. Commission on Elections,6 where we unequivocally


stated that "the Constitution has mandated synchronized national and local elections." 7 Despite the
length and verbosity of their motions, the petitioners have failed to convince us to deviate from this
established ruling.
Neither do we find any merit in the petitioners contention that the ARMM elections are not covered
by the constitutional mandate of synchronization because the ARMM elections were not specifically
mentioned in the above-quoted Transitory Provisions of the Constitution.
That the ARMM elections were not expressly mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be interpreted to mean that the ARMM elections are not
covered by the constitutional mandate of synchronization. We have to consider that the ARMM, as
we now know it, had not yet been officially organized at the time the Constitution was enacted and
ratified by the people. Keeping in mind that a constitution is not intended to provide merely for the
exigencies of a few years but is to endure through generations for as long as it remains unaltered by
the people as ultimate sovereign, a constitution should be construed in the light of what actually is a
continuing instrument to govern not only the present but also the unfolding events of the indefinite
future. Although the principles embodied in a constitution remain fixed and unchanged from the time
of its adoption, a constitution must be construed as a dynamic process intended to stand for a great
length of time, to be progressive and not static.8
To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the intention of
the Constitution to classify autonomous regions, such as the ARMM, as local governments. We refer
to Section 1 of this Article, which provides:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter provided.
The inclusion of autonomous regions in the enumeration of political subdivisions of the State under
the heading "Local Government" indicates quite clearly the constitutional intent to consider
autonomous regions as one of the forms of local governments.
That the Constitution mentions only the "national government" and the "local governments," and
does not make a distinction between the "local government" and the "regional government," is
particularly revealing, betraying as it does the intention of the framers of the Constitution to consider
the autonomous regions not as separate forms of government, but as political units which, while
having more powers and attributes than other local government units, still remain under the category
of local governments. Since autonomous regions are classified as local governments, it follows that
elections held in autonomous regions are also considered as local elections.
The petitioners further argue that even assuming that the Constitution mandates the synchronization
of elections, the ARMM elections are not covered by this mandate since they are regional elections
and not local elections.
In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever possible,
the words used in the Constitution must be given their ordinary meaning except where technical
terms are employed."9 Applying this principle to determine the scope of "local elections," we refer to
the meaning of the word "local," as understood in its ordinary sense. As defined in Websters Third
New International Dictionary Unabridged, "local" refers to something "that primarily serves the needs
of a particular limited district, often a community or minor political subdivision." Obviously, the ARMM

elections, which are held within the confines of the autonomous region of Muslim Mindanao, fall
within this definition.
To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or
municipalities is not enough reason to treat the ARMM regional elections differently from the other
local elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does not
distinguish, we must not distinguish.10
RA No. 10153 does not amend RA No. 9054
The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM elections,
amend RA No. 9054.
We cannot agree with their position.
A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM
elections;11 it does not provide the date for the succeeding regular ARMM elections. In providing for
the date of the regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not amend RA
No. 9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date
of the ARMM elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled
the gap left in RA No. 9054.
We reiterate our previous observations:
This view that Congress thought it best to leave the determination of the date of succeeding
ARMM elections to legislative discretion finds support in ARMMs recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First
Organic Act RA No. 6734 not only did not fix the date of the subsequent elections; it did not even
fix the specific date of the first ARMM elections, leaving the date to be fixed in another legislative
enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA No. 9012
were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not
change or modify any part or provision of RA No. 6734, they were not amendments to this latter law.
Consequently, there was no need to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001, provided that
the first elections would be held on the second Monday of September 2001. Thereafter, Congress
passed RA No. 9140 to reset the date of the ARMM elections. Significantly, while RA No. 9140 also
scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date
of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in
the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333, which
further reset the date of the ARMM regional elections. Again, this law was not ratified through a
plebiscite.
From these legislative actions, we see the clear intention of Congress to treat the laws which fix the
date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress
only acted consistently with this intent when it passed RA No. 10153 without requiring compliance
with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No.
9054.12 (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as
regards the date of the subsequent ARMM elections. In his estimation, it can be implied from the
provisions of RA No. 9054 that the succeeding elections are to be held three years after the date of
the first ARMM regional elections.
We find this an erroneous assertion. Well-settled is the rule that the court may not, in the guise of
interpretation, enlarge the scope of a statute and include therein situations not provided nor intended
by the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be
judicially supplied however later wisdom may recommend the inclusion. 13 Courts are not authorized
to insert into the law what they think should be in it or to supply what they think the legislature would
have supplied if its attention had been called to the omission.14 Providing for lapses within the law
falls within the exclusive domain of the legislature, and courts, no matter how well-meaning, have no
authority to intrude into this clearly delineated space.
Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no need for
RA No. 10153 to comply with the amendment requirements set forth in Article XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an irrepealable law
Even assuming that RA No. 10153 amends RA No. 9054, however, we have already established that
the supermajority vote requirement set forth in Section 1, Article XVII of RA No. 9054 15 is
unconstitutional for violating the principle that Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal these laws.
Where the legislature, by its own act, attempts to limit its power to amend or repeal laws, the Court
has the duty to strike down such act for interfering with the plenary powers of Congress. As we
explained in Duarte v. Dade:16
A state legislature has a plenary law-making power over all subjects, whether pertaining to persons
or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless
prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It
cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every
legislative body may modify or abolish the acts passed by itself or its predecessors. This power of
repeal may be exercised at the same session at which the original act was passed; and even while a
bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature
to a particular mode of repeal. It cannot declare in advance the intent of subsequent
legislatures or the effect of subsequent legislation upon existing statutes. [emphasis ours]
Under our Constitution, each House of Congress has the power to approve bills by a mere majority
vote, provided there is quorum.17 In requiring all laws which amend RA No. 9054 to comply with a
higher voting requirement than the Constitution provides (2/3 vote), Congress, which enacted RA
No. 9054, clearly violated the very principle which we sought to establish in Duarte. To reiterate, the
act of one legislature is not binding upon, and cannot tie the hands of, future legislatures. 18
We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting opinion,
where he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of
Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of
Congress amendatory powers. One Congress cannot limit or reduce the plenary legislative power of
succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to
enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because
Congress has no power, by ordinary legislation, to amend the Constitution." 19

Plebiscite requirement in RA No. 9054 overly broad


Similarly, we struck down the petitioners contention that the plebiscite requirement 20 applies to all
amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite requirement
set forth in the Constitution.
Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous region shall
be effective when approved by majority of the votes cast by the constituent units in a plebiscite
called for the purpose[.]" We interpreted this to mean that only amendments to, or revisions of, the
Organic Act constitutionally-essential to the creation of autonomous regions i.e., those aspects
specifically mentioned in the Constitution which Congress must provide for in the Organic Act 21
require ratification through a plebiscite. We stand by this interpretation.
The petitioners argue that to require all amendments to RA No. 9054 to comply with the plebiscite
requirement is to recognize that sovereignty resides primarily in the people.
While we agree with the petitioners underlying premise that sovereignty ultimately resides with the
people, we disagree that this legal reality necessitates compliance with the plebiscite requirement for
all amendments to RA No. 9054. For if we were to go by the petitioners interpretation of Section 18,
Article X of the Constitution that all amendments to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to impractical and illogical results
hampering the ARMMs progress by impeding Congress from enacting laws that timely address
problems as they arise in the region, as well as weighing down the ARMM government with the costs
that unavoidably follow the holding of a plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the President the
power to appoint OICs to take the place of the elective officials of the ARMM, creates a fundamental
change in the basic structure of the government, and thus requires compliance with the plebiscite
requirement embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:
Section 3. Appointment of Officers-in-Charge. The President shall appoint officers-in-charge for
the Office of the Regional Governor, Regional Vice Governor and Members of the Regional
Legislative Assembly who shall perform the functions pertaining to the said offices until the officials
duly elected in the May 2013 elections shall have qualified and assumed office.
We cannot see how the above-quoted provision has changed the basic structure of the ARMM
regional government. On the contrary, this provision clearly preserves the basic structure of the
ARMM regional government when it recognizes the offices of the ARMM regional government and
directs the OICs who shall temporarily assume these offices to "perform the functions pertaining to
the said offices."
Unconstitutionality of the holdover provision
The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA No. 9054,
which allows the regional officials to remain in their positions in a holdover capacity. The petitioners
essentially argue that the ARMM regional officials should be allowed to remain in their respective

positions until the May 2013 elections since there is no specific provision in the Constitution which
prohibits regional elective officials from performing their duties in a holdover capacity.
The pertinent provision of the Constitution is Section 8, Article X which provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. [emphases ours]
On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. (1) Terms of Office. The terms of office of
the Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for
a period of three (3) years, which shall begin at noon on the 30th day of September next following
the day of the election and shall end at noon of the same date three (3) years thereafter. The
incumbent elective officials of the autonomous region shall continue in effect until their successors
are elected and qualified.
The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers of the
Constitution to categorically set a limitation on the period within which all elective local officials can
occupy their offices. We have already established that elective ARMM officials are also local officials;
they are, thus, bound by the three-year term limit prescribed by the Constitution. It, therefore,
becomes irrelevant that the Constitution does not expressly prohibit elective officials from acting in a
holdover capacity. Short of amending the Constitution, Congress has no authority to extend the
three-year term limit by inserting a holdover provision in RA No. 9054. Thus, the term of three years
for local officials should stay at three (3) years, as fixed by the Constitution, and cannot be extended
by holdover by Congress.
Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws. One
significant difference between the present case and these past cases 22 is that while these past cases
all refer to electivebarangay or sangguniang kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the present case refers to local elective officials - the
ARMM Governor, the ARMM Vice Governor, and the members of the Regional Legislative Assembly
- whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution.
Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for
it (namely Section 7, Article VII of RA No. 9054), the rule of holdover can only apply as an available
option where no express or implied legislative intent to the contrary exists; it cannot apply where
such contrary intent is evident.23
Congress, in passing RA No. 10153 and removing the holdover option, has made it clear that it
wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the exercise of its
plenary legislative powers, has clearly acted within its discretion when it deleted the holdover option,
and this Court has no authority to question the wisdom of this decision, absent any evidence of
unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this
Court, to decide how to fill the vacancies in the ARMM regional government which arise from the
legislature complying with the constitutional mandate of synchronization.
COMELEC has no authority to hold special elections

Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is
sufficiently empowered to set the date of special elections in the ARMM. To recall, the Constitution
has merely empowered the COMELEC to enforce and administer all laws and regulations relative to
the conduct of an election.24Although the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone elections to another
date, this power is confined to the specific terms and circumstances provided for in the law.
Specifically, this power falls within the narrow confines of the following provisions:
Section 5. Postponement of election. - When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure,
and other analogous causes of such a nature that the holding of a free, orderly and honest election
should become impossible in any political subdivision, the Commission, motu proprio or upon a
verified petition by any interested party, and after due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard, shall postpone the election therein to a date
which should be reasonably close to the date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty days after the cessation of the cause for such
postponement or suspension of the election or failure to elect.
Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date
fixed, or had been suspendedbefore the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a failure to elect
but not later than thirty days after the cessation of the cause of such postponement or suspension of
the election or failure to elect. [emphases and underscoring ours]
As we have previously observed in our assailed decision, both Section 5 and Section 6 of BP 881
address instances where elections have already been scheduled to take place but do not occur or
had to be suspended because of unexpected and unforeseen circumstances, such as violence,
fraud, terrorism, and other analogous circumstances.
In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate
of synchronization of national and local elections. Obviously, this does not fall under any of the
circumstances contemplated by Section 5 or Section 6 of BP 881.
More importantly, RA No. 10153 has already fixed the date for the next ARMM elections and the
COMELEC has no authority to set a different election date.
Even assuming that the COMELEC has the authority to hold special elections, and this Court can
compel the COMELEC to do so, there is still the problem of having to shorten the terms of the newly
elected officials in order to synchronize the ARMM elections with the May 2013 national and local
elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as
it does to an amendment of Section 8, Article X of the Constitution, which limits the term of local
officials to three years.
Presidents authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the Presidents power to appoint pertains only to
appointive positions and cannot extend to positions held by elective officials.
The power to appoint has traditionally been recognized as executive in nature. 25 Section 16, Article
VII of the Constitution describes in broad strokes the extent of this power, thus:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [emphasis ours]
The 1935 Constitution contained a provision similar to the one quoted above. Section 10(3), Article
VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of
the Government whose appointments are not herein otherwise provided for, and those whom he
may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the heads of departments. [emphasis ours]
The main distinction between the provision in the 1987 Constitution and its counterpart in the 1935
Constitution is the sentence construction; while in the 1935 Constitution, the various appointments
the President can make are enumerated in a single sentence, the 1987 Constitution enumerates the
various appointments the President is empowered to make and divides the enumeration in two
sentences. The change in style is significant; in providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction between the first group of presidential appointments
and the second group of presidential appointments, as made evident in the following exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after "captain" and x x x delete "and
all" and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO. Madam President, the Committee accepts the proposed amendment because it
makes it clear that those other officers mentioned therein do not have to be confirmed by the
Commission on Appointments.26
The first group of presidential appointments, specified as the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the Armed Forces, and other officers
whose appointments are vested in the President by the Constitution, pertains to the appointive
officials who have to be confirmed by the Commission on Appointments.
The second group of officials the President can appoint are "all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be authorized
by law to appoint."27The second sentence acts as the "catch-all provision" for the Presidents
appointment power, in recognition of the fact that the power to appoint is essentially executive in
nature.28 The wide latitude given to the President to appoint is further demonstrated by the
recognition of the Presidents power to appoint officials whose appointments are not even
provided for by law. In other words, where there are offices which have to be filled, but the law

does not provide the process for filling them, the Constitution recognizes the power of the President
to fill the office by appointment.
Any limitation on or qualification to the exercise of the Presidents appointment power should be
strictly construed and must be clearly stated in order to be recognized. 29 Given that the President
derives his power to appoint OICs in the ARMM regional government from law, it falls under the
classification of presidential appointments covered by the second sentence of Section 16, Article VII
of the Constitution; the Presidents appointment power thus rests on clear constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the President the power to appoint
OICs in elective positions, violates Section 16, Article X of the Constitution, 30 which merely grants the
President the power of supervision over autonomous regions.
This is an overly restrictive interpretation of the Presidents appointment power. There is no
incompatibility between the Presidents power of supervision over local governments and
autonomous regions, and the power granted to the President, within the specific confines of RA No.
10153, to appoint OICs.
The power of supervision is defined as "the power of a superior officer to see to it that lower officers
perform their functions in accordance with law."31 This is distinguished from the power of control or
"the power of an officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for the latter." 32
The petitioners apprehension regarding the Presidents alleged power of control over the OICs is
rooted in their belief that the Presidents appointment power includes the power to remove these
officials at will. In this way, the petitioners foresee that the appointed OICs will be beholden to the
President, and act as representatives of the President and not of the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners supposition. The provision states:
Section 3. Appointment of Officers-in-Charge. The President shall appoint officers-in-charge for
the Office of the Regional Governor, Regional Vice Governor and Members of the Regional
Legislative Assembly who shall perform the functions pertaining to the said offices until the officials
duly elected in the May 2013 elections shall have qualified and assumed office.
The wording of the law is clear. Once the President has appointed the OICs for the offices of the
Governor, Vice Governor and members of the Regional Legislative Assembly, these same officials
will remain in office until they are replaced by the duly elected officials in the May 2013 elections.
Nothing in this provision even hints that the President has the power to recall the appointments he
already made. Clearly, the petitioners fears in this regard are more apparent than real.
RA No. 10153 as an interim measure
We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within the
context it was enacted in. In the first place, Congress enacted RA No. 10153 primarily to heed the
constitutional mandate to synchronize the ARMM regional elections with the national and local
elections. To do this, Congress had to postpone the scheduled ARMM elections for another date,
leaving it with the problem of how to provide the ARMM with governance in the intervening
period, between the expiration of the term of those elected in August 2008 and the assumption to
office twenty-one (21) months away of those who will win in the synchronized elections on May
13, 2013.

In our assailed Decision, we already identified the three possible solutions open to Congress to
address the problem created by synchronization (a) allow the incumbent officials to remain in office
after the expiration of their terms in a holdover capacity; (b) call for special elections to be held, and
shorten the terms of those to be elected so the next ARMM regional elections can be held on May
13, 2013; or (c) recognize that the President, in the exercise of his appointment powers and in line
with his power of supervision over the ARMM, can appoint interim OICs to hold the vacated positions
in the ARMM regional government upon the expiration of their terms. We have already established
the unconstitutionality of the first two options, leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment that
synchronization requires. Given the context, we have to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges brought about by synchronizing the ARMM elections
with the national and local elections. In other words, "given the plain unconstitutionality of
providing for a holdover and the unavailability of constitutional possibilities for lengthening
or shortening the term of the elected ARMM officials, is the choice of the Presidents power
to appoint for a fixed and specific period as an interim measure, and as allowed under
Section 16, Article VII of the Constitution an unconstitutional or unreasonable choice for
Congress to make?"33
We admit that synchronization will temporarily disrupt the election process in a local community, the
ARMM, as well as the communitys choice of leaders. However, we have to keep in mind that the
adoption of this measure is a matter of necessity in order to comply with a mandate that the
Constitution itself has set out for us. Moreover, the implementation of the provisions of RA No. 10153
as an interim measure is comparable to the interim measures traditionally practiced when, for
instance, the President appoints officials holding elective offices upon the creation of new local
government units.
The grant to the President of the power to appoint OICs in place of the elective members of the
Regional Legislative Assembly is neither novel nor innovative. The power granted to the President,
via RA No. 10153, to appoint members of the Regional Legislative Assembly is comparable to the
power granted by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for any
cause in the Regional Legislative Assembly (then called the Sangguniang Pampook). 34
Executive is not bound by the principle of judicial courtesy
The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21, 2011,
question the propriety of the appointment by the President of Mujiv Hataman as acting Governor and
Bainon Karon as acting Vice Governor of the ARMM. They argue that since our previous decision
was based on a close vote of 8-7, and given the numerous motions for reconsideration filed by the
parties, the President, in recognition of the principle of judicial courtesy, should have refrained from
implementing our decision until we have ruled with finality on this case.
We find the petitioners reasoning specious.
Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower
courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher
court, it would be proper for a lower court to suspend its proceedings for practical and ethical
considerations.35 In other words, the principle of "judicial courtesy" applies where there is a strong
probability that the issues before the higher court would be rendered moot and moribund as a result
of the continuation of the proceedings in the lower court or court of origin. 36 Consequently, this
principle cannot be applied to the President, who represents a co-equal branch of government. To

suggest otherwise would be to disregard the principle of separation of powers, on which our whole
system of government is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot,
have the effect of making our ruling any less effective or binding. Regardless of how close the voting
is, so long as there is concurrence of the majority of the members of the en banc who actually took
part in the deliberations of the case,37 a decision garnering only 8 votes out of 15 members is still a
decision of the Supreme Court en banc and must be respected as such. The petitioners are,
therefore, not in any position to speculate that, based on the voting, "the probability exists that their
motion for reconsideration may be granted."38
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory
Resolution, argues that since motions for reconsideration were filed by the aggrieved parties
challenging our October 18, 2011 decision in the present case, the TRO we initially issued on
September 13, 2011 should remain subsisting and effective. He further argues that any attempt by
the Executive to implement our October 18, 2011 decision pending resolution of the motions for
reconsideration "borders on disrespect if not outright insolence"39 to this Court.
In support of this theory, the petitioner cites Samad v. COMELEC,40 where the Court held that while it
had already issued a decision lifting the TRO, the lifting of the TRO is not yet final and executory,
and can also be the subject of a motion for reconsideration. The petitioner also cites the minute
resolution issued by the Court in Tolentino v. Secretary of Finance, 41 where the Court reproached the
Commissioner of the Bureau of Internal Revenue for manifesting its intention to implement the
decision of the Court, noting that the Court had not yet lifted the TRO previously issued. 42
We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion for
reconsideration filed to assail our decision. It does not follow, however, that the TRO remains
effective until after we have issued a final and executory decision, especially considering the clear
wording of the dispositive portion of our October 18, 2011 decision, which states:
WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of
RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the
temporary restraining order we issued in our Resolution of September 13, 2011. No
costs.43 (emphases ours)
In this regard, we note an important distinction between Tolentino and the present case. While it may
be true that Tolentino and the present case are similar in that, in both cases, the petitions assailing
the challenged laws were dismissed by the Court, an examination of the dispositive portion of the
decision in Tolentino reveals that the Court did not categorically lift the TRO. In sharp contrast, in the
present case, we expressly lifted the TRO issued on September 13, 2011. There is, therefore, no
legal impediment to prevent the President from exercising his authority to appoint an acting ARMM
Governor and Vice Governor as specifically provided for in RA No. 10153.
1wphi1

Conclusion
As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282 presents
in his motion, that our Decision has virtually given the President the power and authority to appoint
672,416 OICs in the event that the elections of barangay and Sangguniang Kabataan officials are
postponed or cancelled.
We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal circumstances which led
to the enactment of RA No. 10153. RA No. 10153 was passed in order to synchronize the ARMM
elections with the national and local elections. In the course of synchronizing the ARMM elections
with the national and local elections, Congress had to grant the President the power to appoint OICs
in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective officials is legally
impermissible; and (b) Congress cannot call for special elections and shorten the terms of elective
local officials for less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit for barangay and
Sangguniang Kabataan officials, there is no legal proscription which prevents these specific
government officials from continuing in a holdover capacity should some exigency require the
postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither
legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners motions for reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration for
lack of merit and UPHOLD the constitutionality of RA No. 10153.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
I reiterate my Dissenting Opinion
ANTONIO T. CARPIO
Associate Justice

I reiterate my Dissenting Opinion


PRESBITERO J. VELASCO, JR.
Associate Justice

I maintain my vote joining the dissent of


Justice Velasco
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

(On Official Leave)


MARIANO C. DEL CASTILLO*
Associate Justice

I maintain my dissent
ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

I join the Dissent of J. Carpio


JOSE PORTUGAL PEREZ
Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

(On Leave)
MARIA LOURDES P. A. SERENO**
Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
*

On official leave.

**

On leave.

Rollo, G.R. No. 196271, p. 1221.

Id. at 1261-1263.

Id. at 1345-1383.

Id. at 1174-1175.

V Record of the Constitutional Commission, October 3, 1986, pp. 429-431.

G.R. Nos. 100318, 100308, 100417, and 100420, July 30, 1991, 199 SCRA 750.

Id. at 762.

See Ruben, Statutory Construction, 5th ed., 2003, p. 435, citing Roman Cath. Apostolic
Adm. of Davao, Inc. v. Land Reg. Com., et al., 102 Phil. 596 (1957).
8

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 884 (2003).

Amores v. House of Representatives Electoral Tribunal, G.R. No. 189600, June 29, 2010,
622 SCRA 593, citing Adasa v. Abalos, G.R. No. 168617, February 19, 2007, 516 SCRA 261,
280, and Philippine Free Press, Inc. v. Court of Appeals, 510 Phil. 411, 433 (2005).
10

11

Section 7, Article XVIII of RA No. 9054 provides:

Section 7. First Regular Elections. The first regular elections of the Regional
Governor, Regional Vice Governor and members of the regional legislative assembly
under this Organic Act shall be held on the second Monday of September 2001. The
Commission on Elections shall promulgate rules and regulations as may be
necessary for the conduct of said election.
The election of the Regional Governor, Regional Vice Governor, and members of the
Regional Legislative Assembly of the Autonomous Region In Muslim Mindanao
(ARMM) set forth in Republic Act No. 8953 is hereby reset accordingly.
The funds for the holding of the ARMM elections shall be taken from the savings of
the national government or shall be provided in the General Appropriations Act
(GAA).
12

Rollo, G.R. No. 196271, pp. 1035-1037.

13

Ruben, supra note 8, at 74, citing Morales v. Subido, etc., 135 Phil. 346 (1968).

14

Id., citing People v. Garcia, 85 Phil. 651 (1950).

Section 1, Article XVII of RA No. 9054 provides: "Consistent with the provisions of the
Constitution, this Organic Act may be re-amended or revised by the Congress of the
Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives
and of the Senate voting separately."
15

16

32 Phil. 36, 49 (1915), citing Lewis' Southernland on Statutory Construction, section 244.

CONSTITUTION, Article VI, Section 16(2) states: "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."
17

See The City of Davao v. The Regional Trial Court, Branch XII, Davao City, 504 Phil. 543
(2005), citing 59 C.J., sec. 500, pp. 899-900.
18

19

Rollo, G.R. No. 196271, pp. 1084-1085.

Section 3, Article XVII of RA No. 9054 provides: "Any amendment to or revision of this
Organic Act shall become effective only when approved by a majority of the vote cast in a
plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later
than ninety (90) days after the approval of such amendment or revision."
20

These include: (a) the basic structure of the regional government; (b) the regions judicial
system, i.e., the special courts with personal, family, and property law jurisdiction; and (c) the
grant and extent of the legislative powers constitutionally conceded to the regional
government under Section 20, Article X of the Constitution.
21

Adap v. Commission on Elections, G.R. No. 161984, February 21, 2007, 516 SCRA
403; Sambarani v. COMELEC, 481 Phil. 661 (2004); and Montesclaros v. Comelec, 433 Phil.
620 (2002).
22

23

Guekeko v. Santos, 76 Phil. 237 (1946).

24

See CONSTITUTION, Article IX(C), Section 2.

Hon. Luis Mario M. General, Commissioner, National Police Commission v. Hon. Alejandro
S. Urro, in his capacity as the new appointee vice herein petitioner Hon. Luis Mario M.
General, National Police Commission, and Hon. Luis Mario M. General, Commissioner,
National Police Commission v. President Gloria Macapagal-Arroyo, thru Executive Secretary
Leandro Mendoza, in Her capacity as the appointing power, Hon. Ronaldo V. Puno, in His
capacity as Secretary of the Department of Interior and Local Government and as Ex-Officio
Chairman of the National Police Commission and Hon. Eduardo U. Escueta, Alejandro S.
Urro, and Hon. Constancia P. de Guzman as the midnight appointee, G.R. No. 191560,
March 29, 2011.
25

26

II Record of the Constitutional Commission, July 31, 1986, p. 520.

27

CONSTITUTION, Article VII, Section 16.

28

Pimentel, Jr. v. Exec. Secretary Ermita, 509 Phil. 567 (2005).

29

Id. at 573, citing Sarmiento III v. Commissioner Mison, 240 Phil. 505 (1987).

Section 16. The President shall exercise general supervision over autonomous regions to
ensure that laws are faithfully executed.
30

Bito-onon v. Hon. Yap Fernandez, 403 Phil. 693, 702 (2001), citing Drilon v. Lim, G.R. No.
112497, August 4, 1994, 235 SCRA 135, 141.
31

32

Drilon v. Lim, supra, at 140-141.

33

Rollo, G.R. No. 196271, pp. 1057-1058.

Section 35. Filling of vacancy. - Pending an election to fill a vacancy arising from any cause
in the Sangguniang Pampook, the vacancy shall be filled by the President, upon
recommendation of the Sangguniang Pampook: Provided, That the appointee shall come
from the same province or sector of the member being replaced.
34

35

Rep. of the Phils. v. Sandiganbayan (First Div.), 525 Phil. 804 (2006).

36

Eternal Gardens Memorial Park Corp. v. Court of Appeals, 247 Phil. 387, 394 (1988).

Section 1(a), Rule 12 of the 2010 Internal Rules of the Supreme Court provides: SECTION
1. Voting requirements. (a) All decisions and actions in Court en banc cases shall be made
upon the concurrence of the majority of the Members of the Court who actually took part in
the deliberations on the issue or issues involved and voted on them.
37

38

Rollo, G.R. No. 196271, p. 1440.

Tolentino v. Secretary of Finance, G.R. No. 115455, September 23, 1994, Minute
Resolution.
39

40

G.R. Nos. 107854 and 108642, July 16, 1993, 224 SCRA 631.

G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873, and
115931, August 25, 1994, 235 SCRA 630.
41

42

The Court, in its Minute Resolution dated September 23, 1994, stated thus:
The Court calls the attention of respondents of the fact that the temporary restraining
order issued on June 30, 1994 was effective immediately and continuing until further
orders from this Court. Although the petitions in connection with which the TRO was
issued were subsequently dismissed, the decision is not yet final and the TRO
previously issued has not been lifted xxx because the TRO in these cases was
expressly made effective until otherwise ordered by this Court. (Rollo, G.R. No.
196271, p. 1426; emphasis ours.)

43

Rollo, G.R. No. 196271, p. 1067.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 202242

April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,


vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).
By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second

paragraph of the dispositive portion of the Courts July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9
Pursuant to the same resolution, petitioner and respondents filed their respective memoranda. 10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.
Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote. 17
1wphi1

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain

oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.
While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic. 19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter
"a" to describe "representative of Congress," the Filipino people through the Framers intended that
Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members." 22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President, 26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the abovequoted provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of evennumbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commissions desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.
xxx
No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional circumvention

that cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned one
member of Congress sitting in the JBC, it is sensible to presume that this representation carries with
him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.
Respondents contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.
Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.
In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted." 34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37

Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance. 38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

MARVIC MARIO VICTOR F. LEONEN


Associate Justice
C E R TI F I C ATI O N

Pursuant to Section 13, Article VIII of the Constitution, T hereby certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1

Rollo, pp. 257-286.

Id. at 287-298.

Entitled "Resolution expressing the sense of the Senate that the Judicial and Bar Council
(JBC) defer the consideration of all nominees and the preparation of the short list to be
submitted to the President for the position of Chief Justice of the Supreme Court;" id. at 303304.
3

Entitled "Resolution expressing anew the sense of the Senate that the Senate and House
of Representatives should have one (1) representative each in the Judicial and Bar Council
(JBC) and that each representative is entitled to a full vote;" id. at 305-307.
4

Entitled "Resolution to file an urgent motion with the Supreme Court to set for oral argument
the motion for reconsideration filed by the representatives of Congress to the Judicial and
Bar Council (JBC) in the case of Francisco Chavez v. Judicial and Bar Council, Sen. Francis
Joseph G.. Escudero and Rep. Niel Tupas Jr., G.R. No. 2022242 considering the primordial
importance of the constitutional issues involved;" id. at 308-310.
5

Entitled "Resolution authorizing Senator Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for reconsideration filed by the representative of the Senate to
the Judicial and Bar Council in the case of Francisco Chavez v. Judicial and Bar Council,
Sen. Francis Joseph G. Escudero and Rep. Niel Tupas, Jr.;" id. at 311-312.
6

Id. at 313-314.

Id. at (318-I)-(318-K).

Id. at 318-J.

10

Petitioners Memorandum, id. at 326-380; Respondents Memorandum, id. at 381-424.

Malolos Constitution Article 80 Title X. The Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the National Assembly in concurrence with the
President of the Republic and the Secretaries of the Government, and shall be absolutely
independent of the Legislative and Executive Powers."
11

1935 Constitution Article VIII, Section 5. The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the
Commission on Appointments."
12

13

1 Records of the Constitutional Commission Proceedings and Debates, 437.

Section 4 Article X of the 1973 Constitution provides: "The Members of the Supreme Court
and judges of inferior courts shall be appointed by the President."
14

15

1 Records, Constitutional Commission, Proceedings and Debates, p. 487.

List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo, pp.
62-63.
16

17

Id.

Id. at 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and
Minutes of the 12th En Banc Meeting, May 30, 2001.
18

19

Malcolm, The Constitutional Law of the Philippine Islands (2nd ed. 1926), p. 26.

1987 Constitution, Article VII, Section 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall begin at noon on the
thirtieth day of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any re-election. No person
who has succeeded as President and has served as such for more than four years shall be
qualified for election to the same office at any time.
20

xxx
The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the Members of both Houses of
the Congress, voting separately. (Emphasis supplied)
x x x.
1987 Constitution, Article VII, Section 9. Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President shall nominate a
Vice-President from among the Members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately. (Emphasis supplied)
21

1987 Constitution, Article VII, Section 18. The President shall be the Commander-inChief 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
22

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. (Emphasis supplied)
1987 Constitution, Article VI 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.
23

1987 Constitution, Article VI Section 24. All appropriation, revenue or tariff bills, bills
authorizing increase of 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.
24

1987 Constitution, Article VI Section 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.
25

1987 Constitution, Article VII Section 4. The returns of every election for President and
Vice-President, duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the votes.
26

The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the Members of both Houses of
the Congress, voting separately.
1987 Constitution, Article XI Section 3 (1). The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
27

xxx
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.

28

Dated March 27, 2007; Annex "D," rollo, p. 104.

Annex C, id. at 95. Quoting the interpretation of Article VIII, Section (1) of the Constitution
by Fr. Joaquin Bernas in page 984 of his book, The 1987 Constitution of the Republic of the
Philippines, A Commentary. He quoted another author, Hector de Leon, and portions of the
decisions of this Court in Flores v. Drilon, and Escalante v. Santos, before extensively
quoting the Record of the Constitutional Commission of 1986 (pages 444 to 491).
29

30

Annex "E," id. at 1205.

31

Rollo, pp. 91-93.

32

G.R. No. 166006, March 14, 2008, 548 SCRA 485.

33

Id. at 516-517. (Citations omitted.)

34

Blacks Law Dictionary, Fifth ed., p. 198.

35

Agpalo, Statutory Construction, 2009 ed., p. 231.

36

Id., citing Cartwrite v. Cartwrite, 40 A2d 30, 155 ALR 1088 (1944).

37

Id., Agpalo, p. 232

Dissenting Opinion, Chief Justice Panganiban, Central Bank (Now Bangko Sentral Ng
Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, citing Peralta v. COMELEC. No. L-47771, March 11,
1978, 82 SCRA 30, 77, citing concurring and dissenting opinion of former Chief Justice
Fernando, citing Malcolm.
38

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
ABAD, J.:
On July 17, 2012, the Court rendered a Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring
that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The
Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a
representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987
Constitution.
On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral
arguments on the following Issues:

1. Whether or not the current practice of the JBC to perform its functions with eight members, two of
whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of
the 1987 Constitution.
A. Whether or not the JBC should be composed of seven members only.
B. Whether or not Congress is entitled to more than one seat in the JBC.
C. Assuming Congress is entitled to more than one seat, whether or not each representative of
Congress should be entitled to exercise one whole vote.
I maintain my dissent to the majority opinion now being reconsidered.
To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House
of Representatives are entitled to one representative each in the JBC, both with the right to cast one
full vote in its deliberations.
At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which
provides that:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(Emphasis supplied)
In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular
letter "a" to describe "representative of the Congress," the Filipino people through the framers of the
1987 Constitution intended Congress to just have one representative in the JBC. The majority
opinion added that there could not have been any plain oversight in the wordings of the provision
since the other provisions of the 1987 Constitution were amended accordingly with the shift to a
bicameral legislative body.
The mere fact, however, that adjustments were made in some provisions should not mislead the
Court into concluding that all provisions have been amended to recognize the bicameral nature of
Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of
the Constitutional Commission himself, admitted that the committee charged with making
adjustments in the previously passed provisions covering the JBC, failed to consider the impact of
the changed character of the Legislature on the inclusion of "a representative of the Congress" in the
membership of the JBC.3
Indeed, to insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and
distinct from each other although they are both involved in law-making. Both legislators are elected
differently, maintain separate administrative organizations, and deliberate on laws independently. In
fact, neither the Senate nor the House of Representatives can by itself claim to represent the
Congress.
Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just
either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While

the provision provides for just "a representative of the Congress," it also provides that such
representation is "ex officio" or "by virtue of one's office, or position."4
Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate
representative to the JBC. In the same way, under the House of Representatives rules, the
Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there
are actually two persons in Congress who hold separate offices or positions with the attached
function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no
representative from Congress will qualify as "ex officio" member of the JBC. This would deny
Congress the representation that the framers of the 1987 Constitution intended it to have.
Having said that the Senate and the House of Representatives should have one representative each
in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its
deliberations. To split the vote between the two legislators would be an absurdity since it would
diminish their standing and make them second class members of the JBC, something that the
Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on
January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by
recognizing this right can the true spirit and reason of Section 8(1) be attained.
For the above reasons, I vote to GRANT the motion for reconsideration.
ROBERTO A. ABAD
Associate Justice

Footnotes
1

Rollo, pp. 226-250.

Id. at 257-284.

http://opinion.inquirer.net/31813/jbc-odds-and-ends (last accessed February 15, 2013).

Webster's New World College Dictionary, 3rd Edition, p. 477.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
LEONEN, J.:
I dissent.

Both the Senate and the House of Representatives must be represented in the Judicial and Bar
Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and
contemporary understanding of our people of the structure of our government. Any other
interpretation diminishes Congress and negates the effectivity of its representation in the Judicial
and Bar Council.
It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to
ensure that the constitutional project ratified by our people is given full effect.
At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides
the following:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of
the private sector. (Emphasis provided)
Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the
article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase
includes the words "representative of Congress" and "ex officio Members." In the context of the
constitutional plan involving a bicameral Congress, these words create ambiguity.
A Bicameral Congress
Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:
The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives x x x. (Emphasis provided)
Senators are "elected at large by the qualified voters of the Philippines". 1 Members of the House of
Representatives, on the other hand, are elected by legislative districts 2 or through the party list
system.3 The term of a Senator4 is different from that of a Member of the House of
Representatives.5 Therefore, the Senate and the House of Representatives while component parts
of the Congress are not the same in terms of their representation. The very rationale of a bicameral
system is to have the Senators represent a national constituency. Representatives of the House of
Representatives, on the other hand, are dominantly from legislative districts except for one fifth
which are from the party list system.
Each chamber is organized separately.6 The Senate and the House each promulgates their own
rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records
of their proceedings.9 The Senate and the House of Representatives discipline their own respective
members.10
To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a
Senate President and a Speaker of the House of Representatives. There is no single journal for the
Congress of the Philippines, but there is a journal for the Senate and a journal for the House of
Representatives. There is no record of proceedings for the entire Congress of the Philippines, but
there is a Record of proceedings for the Senate and a Record of proceedings for the House of

Representatives. The Congress of the Philippines does not discipline its members. It is the Senate
that promulgates its own rules and disciplines its members. Likewise, it is the House that
promulgates its own rules and disciplines its members.
No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No
Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or
she reports to the House of Representatives.
Congress, therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives.
Any Senator acting ex officio or as a representative of the Senate must get directions from the
Senate. By constitutional design, he or she cannot get instructions from the House of
Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she
must be open to amend or modify the instructions given to him or her by the Senate if the House of
Representatives instructions are different. Yet, the Constitution vests disciplinary power only on the
Senate for any Senator.
The same argument applies to a Member of the House of Representatives.
No Senator may carry instructions from the House of Representatives. No Member of the House of
Representatives may carry instructions from the Senate. Neither Senator nor Member of the House
of Representatives may therefore represent Congress as a whole.
The difference between the Senate and the House of Representative was a subject of discussion in
the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission,
Commissioner Jose F. S. Bengzon presented the following argument during the discussion on
bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino
people in making these officials accountable:
I grant the proposition that the Members of the House of Representatives are closer to the people
that they represent. I grant the proposition that the Members of the House of Representatives
campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant
the proposition that the candidates for Senator do not have as much time to mingle around with their
constituencies in their respective home bases as the candidates for the House. I also grant the
proposition that the candidates for the Senate go around the country in their efforts to win the votes
of all the members of the electorate at a lesser time than that given to the candidates for the House
of Representatives. But then the lesson of the last 14 years has made us mature in our political
thinking and has given us political will and self-determination. We really cannot disassociate the fact
that the Congressman, the Member of the House of Representatives, no matter how national he
would like to think, is very much strongly drawn into the problems of his local constituents in his own
district.
Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people
power, I believe that this so-called people power can be used to monitor not only the Members of the
House of Representatives but also the Members of the Senate. As I said we may have probably
adopted the American formula in the beginning but over these years, I think we have developed that
kind of a system and adopted it to our own needs. So at this point in time, with people power
working, it is not only the Members of the House who can be subjected to people power but also the
Members of the Senate because they can also be picketed and criticized through written articles and
talk shows. And even the people not only from their constituencies in their respective regions and
districts but from the whole country can exercise people power against the Members of the Senate

because they are supposed to represent the entire country. So while the Members of Congress
become unconsciously parochial in their desire to help their constituencies, the Members of the
Senate are there to take a look at all of these parochial proposals and coordinate them with the
national problems. They may be detached in that sense but they are not detached from the people
because they themselves know and realize that they owe their position not only to the people from
their respective provinces but also to the people from the whole country. So, I say that people power
now will be able to monitor the activities of the Members of the House of Representatives and that
very same people power can be also used to monitor the activities of the Members of the Senate. 11
Commissioner Bengzon provided an illustration of the fundamental distinction between the House of
Representatives and the Senate, particularly regarding their respective constituencies and
electorate. These differences, however, only illustrate that the work of the Senate and the House of
Representatives taken together results in a Congress functioning as one branch of government.
Article VI, Section 1, as approved by the Commission, spoke of one Congress whose powers are
vested in both the House of Representatives and the Senate.
Thus, when the Constitution provides that a "representative of Congress" should participate in the
Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a
Member of the House of Representative carrying out instructions from the Senate. It is not the kind
of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a
Member of the House of Representative may represent the Congress as a whole is contrary to the
intent of the Constitution. It is unworkable.
One mechanism used in the past to work out the consequence of the majoritys opinion is to allow a
Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to
each allow them only half a vote.
Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice
is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector,
legal academia, and retired justices. Each of these sectors are given equal importance and
rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the
wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty
percent of these institutions.
This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution
granting awesome powers to Congress, intended to diminish its component parts. After all, they are
institutions composed of people who have submitted themselves to the electorate. In creating
shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less
than the input of the professor of law or the member of the Integrated Bar of the Philippines or the
member from the private sector.
The other solution done in the past was to alternate the seat between a Senator and a Member of
the House of Representatives.
To alternate the seat given to Congress between the Senate and the House of Representatives
would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she
represents the Senate and not Congress as a whole. When a Member of the House of
Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the
seat not only diminishes congressional representation; it negates it.
Constitutional Interpretation

The argument that swayed the majority in this cases original decision was that if those who crafted
our Constitution intended that there be two representatives from Congress, it would not have used
the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar Council, there will be representation from Congress
and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did
not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions
creating many other bodies in the Constitution.12
In other words, we could privilege or start our interpretation only from the preposition "a" and from
there provide a meaning that ensures a difficult and unworkable result -- one which undermines the
concept of a bicameral congress implied in all the other 114 other places in the Constitution that
uses the word "Congress".
Or, we could give the provision a reasonable interpretation that is within the expectations of the
people who ratified the Constitution by also seeing and reading the words "representative of
Congress" and "ex officio."
This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the
text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba
legis. But in doing so, we encounter an ambiguity.
In Macalintal v. Presidential Electoral Tribunal,13 we said:
As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution. In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied. Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:
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. (Emphasis provided)

And in Civil Liberties Union v. Executive Secretary,13 we said:


A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.
The authoritativeness of text is no excuse to provide an unworkable result or one which undermines
the intended structure of government provided in the Constitution. Text is authoritative, but it is not
exhaustive of the entire universe of meaning.
There is no compelling reason why we should blind ourselves as to the meaning of "representative
of Congress" and "ex officio." There is no compelling reason why there should only be one
representative of a bicameral Congress.
Proposed Reasons for Only One Representative of Congress
The first reason to support the need for only one representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar Council.
This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a
yes or a no. It is in this sense that a tie-breaker will be necessary.
However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide
the President with a shortlist of candidates to every judicial position. We take judicial notice that for
vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All
these votes are tallied and those who garner a specific plurality are thus put on the list and
transmitted to the President. There had been no occasion when the Judicial and Bar Council ever
needed to break a tie. The Judicial and Bar Councils functions proceed regardless of whether they
have seven or eight members.
The second reason that the main opinion accepted as persuasive was the opinion that Congress
does not discharge its function to check and balance the power of both the Judiciary and the
Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the
Representative of Congress, who is ex officio, does not need to consult with Congress as a whole.
This is very perplexing and difficult to accept.
By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary
should be done by the Supreme Court. However, for judicial positions, this is vested in the
Executive. Furthermore, because of the importance of these appointments, the Presidents discretion
is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the
supervision of the Supreme Court but composed of several components.
The Judicial and Bar Council represents the constituents affected by judicial appointments and by
extension, judicial decisions. It provides for those who have some function vis a vis the law that
should be applied and interpreted by our courts. Hence, represented are practicing lawyers

(Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal
academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also
represented in some way are those that will be affected by the interpretation directly (private sector
representative).
Congress is represented for many reasons.
One, it crafts statutes and to that extent may want to ensure that those who are appointed to the
judiciary are familiar with these statutes and will have the competence, integrity, and independence
to read its meaning.
Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress,
therefore, has an interest in the judicial philosophy of those considered for appointment into our
judiciary.
Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders
including that of the President. Thus, it will have greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the independence required of our judges and
justices, the Members of Congress may be able to appreciate the kind of balance that will be
necessary -- the same balance that the President might be able to likewise appreciate -- when
putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they
embody it. Senators and Members of the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically submit themselves to the electorate.
It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be
instructed by their respective chambers to consider some principles and directions. Through
resolutions or actions by the Congressional Committees they represent, the JBC Congressional
representatives choices may be constrained. Therefore, they do not sit there just to represent
themselves. Again, they are "representatives of Congress" "ex officio".
The third reason to support only one representative of Congress is the belief that there is the
"unmistakable tenor" in the provision in question that one co-equal branch should be represented
only by one Representative.14It may be true that the Secretary of Justice is the political alter ego of
the President or the Executive. However, Congress as a whole does not have a political alter ego. In
other words, while the Executive may be represented by a single individual, Congress cannot be
represented by an individual. Congress, as stated earlier, operates through the Senate and the
House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by
only one individual.
A Note on the Work of the Constitutional Commission
Time and again, we have clarified the interpretative value to Us of the deliberations of the
Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention are of value as
showing the views of the individual members, and as indicating the reason for their votes, but they
give Us no light as to the views of the large majority who did not talk, much less of the mass or our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face.The proper interpretation

therefore depends more on how it was understood by the people adopting it than in the
framers understanding thereof.15 (Emphasis provided)
Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16
The intention of the framers of the Constitution, even assuming we could discover what it was, when
it is not adequately expressed in the Constitution, that is to say, what they meant when they did not
say it, surely that has no binding force upon us. If we look behind or beyond what they set down
in the document, prying into what else they wrote and what they said, anything we may find
is only advisory. They may sit in at our councils. There is no reason why we should
eavesdrop on theirs.17 (Emphasis provided)
In addition to the interpretative value of the discussion in the Constitutional Commission, we should
always be careful when we quote from their records without understanding their context.
The Committees of the Constitutional Commission were all tasked to finish their reports not later
than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August
15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of
formulating and polishing the style of the final draft of the new Constitution scheduled for submission
to the entire membership of the Commission not later than August 25, 1986. 20
The Rules of the Constitutional Commission also provided for a process of approving resolutions
and amendments.
Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated from
a committee, the resolution was signed by its chairman. 22 Resolutions were filed with the SecretaryGeneral.23 The First Reading took place when the titles of the resolutions were read and referred to
the appropriate committee.24
The Committees then submitted a Report on each resolution. 25 The Steering Committee took charge
of including the committee report in the Calendar for Second Reading. 26 The Second Reading took
place on the day set for the consideration of a resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there were any.28
A motion to close debate took place after three speeches for and two against, or if only one speech
has been raised and none against it.29 The President of the Constitutional Commission had the
prerogative to allow debates among those who had indicated that they intended to be heard on
certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider
the Committee amendments.31
After a resolution was approved on Second Reading, it was included in the Calendar for Third
Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third
Reading.33 All constitutional proposals approved by the Commission after Third Reading were
referred to the Committees on Sponsorship and Style for collation, organization, and consolidation
into a complete and final draft of the Constitution.34 The final draft was submitted to the Commission
for the sole purpose of determining whether it reflects faithfully and accurately the proposals as
approved on Second Reading.35
With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows:

On July 10, 1986, the Committee on the Judiciary presented its Report to the
Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14,
1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar
Council.37 The discussion spoke of the Judicial and Bar Council having seven members.
Numerous mentions of the Judicial and Bar Council being comprised of seven members were also
made by Commissioners on July 14, 1986. On the same day, the amended article was approved by
unanimous voting.38
On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place. 39 The vote
was 43 and none against.40
Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21,
1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the
presentation and stated that they had a very difficult decision to make regarding bicameralism and
unicameralism.42 The debate occupied the Commission for the whole day.
Then, a vote on the structure of Congress took place. 43 Forty four (44) commissioners cast their
votes during the roll call.44 The vote was 23 to 22.45
On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing
amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46
On October 9, 1986, the entire Article on the Legislature was approved on Third Reading. 47
By October 10, 1986, changes in style on the Article on the Legislature were introduced. 48
On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of
the Constitutional Commission, Cecilia Munoz-Palma. 49
It is apparent that the Constitutional Commission either through the Style and Sponsorship
Committee or the Committees on the Legislature and the Judiciary was not able to amend the
provision concerning the Judicial and Bar Council after the Commission had decided to propose a
bicameral Congress. We can take judicial notice of the chronology of events during the deliberations
of the Constitutional Commission. The chronology should be taken as much as the substance of
discussions exchanged between the Commissioners.
The quotations from the Commissioners mentioned in the main opinion and in the proposed
resolution of the present Motion for Reconsideration should thus be appreciated in its proper context.
The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986
and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary.
Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about appointments of members of the Supreme
Court and of judges of lower courts. At present it is the President who appoints them. If there is a
Commission on Appointments, then it is the President with the confirmation of the Commission on
Appointments. In this proposal, we would like to establish a new office, a sort of a board composed

of seven members, called the Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this Council.
xxxx
MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four
of them who are the regular members.
xxxx
MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics. 51
xxxx
It must also be noted that during the same day and in the same discussion, both Commissioners
Rodrigo and Concepcion later on referred to a National Assembly and not a Congress, as can be
seen here:
MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact
rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary
provides:
The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court.
MR. CONCEPCION: Yes.
MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or
supplement the rules concerning the protection and enforcement of constitutional rights, pleading,
etc. it must have the advice and concurrence of the Supreme Court.
MR. CONCEPCION: That is correct.52
On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the
exchange noted in the main opinion took place. Thus:
MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the
provision in the 1935 Constitution, Article VIII, Section 5.
xxxx
If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this
will be a diminution of the appointing power of the highest magistrate of the land, of the President of
the Philippines elected by all the Filipino people. The appointing power will be limited by a group of
seven people who are not elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional
provisions on appointments. The members of the Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be appointed by the President except upon
recommendation or nomination of three names by this committee of seven people, commissioners of
the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors,

generals of the Army will not come under this restriction. Why are we going to segregate the
Judiciary from the rest of our government in the appointment of the high-ranking officials?
Another reason is that this Council will be ineffective. It will just besmirch the honor of our President
without being effective at all because this Council will be under the influence of the President. Four
out of seven are appointees of the President, and they can be reappointed when their term ends.
Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego
of the President. Another member represents the legislature. In all probability, the controlling party in
the legislature belongs to the President and, therefore, this representative from the National
Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that even
the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will be
influenced anyway by the President.53
It must again be noted that during this day and period of amendments after the quoted passage in
the Decision, the Commission later on made use of the term National Assembly and not Congress
again:
MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last
sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National
Assembly at the opening of each regular session."
May I explain that I have gone over the operations of other deliberative assemblies in some parts of
the world, and I noticed that it is only the Chief Executive or head of state who addresses the
National Assembly at its opening. When we say "opening," we are referring to the first convening of
any national assembly. Hence, when the Chief Executive or head of state addresses the National
Assembly on that occasion, no other speaker is allowed to address the body.
So I move for the deletion of this last sentence.54
Based on the chronology of events, the discussions cited by the main ponencia took place when the
commissioners were still contemplating a unicameral legislature in the course of this discussion.
Necessarily, only one Representative would be needed to fully effect the participation of a
unicameral legislature. Therefore, any mention of the composition of the JBC having seven
members in the records of the Constitutional Commission, particularly during the dates cited, was
obviously within the context that the Commission had not yet voted and agreed upon a bicameral
legislature.
The composition of the Congress as a bilateral legislature became final only after the JBC
discussions as a seven-member Council indicated in the Records of the Constitutional Commission
took place. This puts into the proper context the recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:
Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of
this group is, that all the provisions that were being drafted up to that time assumed a unicameral
government.55
The repeated mentions of the JBC having seven members as indicated in the Records of the
Constitutional Commission do not justify the points raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve even as persuasive means to ascertain intent
at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not
relevant even to advise us on how Congress is to be represented in that constitutional organ.

We should never forget that when we interpret the Constitution, we do so with full appreciation of
every part of the text within an entire document understood by the people as they ratified it and with
all its contemporary consequences. As an eminent author in constitutional theory has observed while
going through the various interpretative modes presented in jurisprudence: "x x x all of the
methodologies that will be discussed, properly understood, figure in constitutional analysis as
opportunities: as starting points, constituent parts of complex arguments, or concluding
evocations." 56
Discerning that there should be a Senator and a Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial
activism. It is in keeping with the constitutional project of a bicameral Congress that is effective
whenever and wherever it is represented. It is in tune with how our people understand Congress as
described in the fundamental law. It is consistent with our duty to read the authoritative text of the
Constitution so that ordinary people who seek to understand this most basic law through Our
decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in
Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be
given full effect.
In a sense, we do not just read words in a legal document; we give meaning to a Constitution.
For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of
merit.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

Footnotes
1

CONSTITUTION, Art. VI, Sec. 2.

CONSTITUTION, Art. VI, Sec. 5 (1).

CONSTITUTION, Art. VI, Sec. 5 (2). See also the recent case of Atong Paglaum v.
COMELEC et al., G.R. No. 203766, for the most recent discussion on the nature of the party
list system.
3

The term of a senator is six years, extendible for another term. CONSTITUTION, Art. VI,
Sec. 4.
4

The term of a member of the House of Representatives is three years, and may be
extendible for three consecutive terms. CONSTITUTION, Art. VI, Sec. 7.
5

CONSTITUTION, Art. VI, Sec. 16.

CONSTITUTION, Art. VI, Sec. 16 (1).

CONSTITUTION, Art. VI, Sec. 16 (4), par. (1).

CONSTITUTION, Art. VI, Sec. 16 (4), par. (2).

10

CONSTITUTION, Art. VI, Sec. 16 (3).

11

II RECORD, CONSTITUTIONAL COMMISSION 63 (July 21, 1986).

CONSTITUTION, Art. VI, Sec. 2: The Senate shall be composed of twenty-four Senators
who shall be elected at large by the qualified voters of the Philippines, as may be provided
by law.;
12

Art. VI, Sec. 5: The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law...;
Art. VI, 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;
Art. VI, 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.;
Art. VIII, Sec. 4.1: The Supreme Court shall be composed of a Chief Justice and
fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members...;
Art. IX (B), Sec. 1: The civil service shall be administered by the Civil Service
Commission composed of a Chairman and two Commissioners...;
Art. IX (C), Sec. 1: There shall be a Commission on Elections composed of a
Chairman and six Commissioners...;
Art. IX (D), Sec. 1: There shall be a Commission on Audit composed of a Chairman
and two Commissioners...;
Art. XI, Sec. 11: There is hereby created the independent Office of the Ombudsman,
composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.;
Art. XII, Sec. 17 (2): The Commission [on Human Rights] shall be composed of a
Chairman and four Members who must be natural-born citizens of the Philippines
and a majority of whom shall be members of the Bar.
Atty. Romulo A. Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November
23, 2010, 635 SCRA 783, 797-799.
13

Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1981, 194
SCRA 317, 325.
13

Francisco I. Chavez v. Judicial and Bar Council, Sen. Francis Joseph G. Escudero and
Rep. Neil C. Tupas, Jr., G.R. No. 202242, July 17, 2012, p. 18.
14

15

Civil Liberties Union v. Executive Secretary, supra at 337.

16

Charles P. Curtis. LIONS UNDER THE THRONE 2, Houghton Mifflin, 1947.

Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412 Phil. 308, 363
(2001).
17

I RECORD, CONSTITUTIONAL COMMISSION Appendix 2, p. 1900, (July 10, 1986),


PROPOSED RESOLUTION NO. 50, RESOLUTION PROVIDING FOR THE RULES OF THE
CONSTITUTIONAL COMMISSION (PROPOSED RESOLUTION NO. 50), Rule II, Sec. 9.
18

19

Proposed Resolution No. 50, Rule II, Sec. 9.

20

Proposed Resolution No. 50, Rule II, Sec. 9.

21

Proposed Resolution No. 50, Rule IV, Sec. 20.

22

Proposed Resolution No. 50, Rule IV, Sec. 20.

23

Proposed Resolution No. 50, Rule IV, Sec. 20.

24

Proposed Resolution No. 50, Rule IV, Sec. 21.

25

Proposed Resolution No. 50, Rule IV, Sec. 22.

26

Proposed Resolution No. 50, Rule IV, Sec. 22.

27

Proposed Resolution No. 50, Rule IV, Sec. 23.

28

Proposed Resolution No. 50, Rule IV, Sec. 23.

29

Proposed Resolution No. 50, Rule IV, Sec. 24.

30

Proposed Resolution No. 50, Rule IV, Sec. 25.

31

Proposed Resolution No. 50, Rule IV, Sec. 26.

32

Proposed Resolution No. 50, Rule IV, Sec. 27.

33

Proposed Resolution No. 50, Rule IV, Sec. 27.

34

Proposed Resolution No. 50, Rule IV, Sec. 29.

35

Proposed Resolution No. 50, Rule IV, Sec. 29.

I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,


1986).
36

I RECORD, CONSTITUTIONAL COMMISSION, RECORD NO. 27 (Thursday, July 10,


1986).
37

I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 27 (Thursday, July 10,


1986).
38

I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,


1986).
39

I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,


1986).
40

I RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 34 (Saturday, July 19,


1986), which reads:
41

RECONSIDERATION AND APPROVAL, ON THIRD READING, OF THE ARTICLE


ON THE JUDICIARY. On motion of Mr. Bengzon, there being no objection, the Body
reconsidered the approval, on Third Reading, of the Article on the Judiciary, to afford
the other Members opportunity to cast their votes. Thereupon, upon direction of the
Chair, the Secretary-General called the Roll for nominal voting and the following
Members cast an affirmative vote:
Abubakar
Alonto
Azcuna
Natividad
Tadeo
With 5 additional affirmative votes, making a total of 43 Members voting in favor and
none against, the Chair declared the Article on the Judiciary approved on Third
Reading.
I RECORD, CONSTITUTIONAL COMMISSION, NO. 35 (Monday, July 21, 1986), which
reads in part:
42

MR. DAVIDE:
xxx
A Unicameral Structure of the National Assembly. In the records of the 1935 and
1971 Constitutional Conventions, and now the 1986 Constitutional Commission,
advocates of unicameralism and bicameralism have eloquently discoursed on the
matter. The draft proposal of the 1986 UP Law Constitution Project analyzes

exhaustively the best features and the disadvantages of each. Our people, having
experienced both systems, are faced with a difficult decision to make.
Madam President and my dear colleagues, even in our own Committee, I had to
break the tie in favor of unicameralism. Commissioner Sarmiento, in his Resolution
No. 396, aptly stated that the Philippines needs a unicameral legislative assembly
which is truly representative of the people, responsive to their needs and welfare,
economical to maintain and efficient and effective in the exercise of its powers,
functions and duties in the discharge of its responsibilities. Commissioner Tingson,
however, said that despite its simplicity of organization, resulting in economy and
efficiency, and achieving a closer relationship between the legislative and executive,
it also resulted in the authoritarian manipulation by the Chief Executive, depriving in
the process the people from expressing their true sentiments through their chosen
representatives. Thus, under Resolution No. 321, Commissioner Tingson calls for the
restoration of the bicameral form of legislature to maximize the participation of people
in decision-making.
I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,
1986).
43

I, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 35, (Monday July 21,


1986), which reads in part:
44

xxx
With 22 Members voting for a unicameral system and 23 Members voting for
bicameralism, the Body approved the proposal for a bicameral legislature.
Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995, pp. 310311.
45

III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 102 (Tuesday and


Wednesday, October 7 and 8, 1987).
46

III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 103 (Thursday, October


9, 1986), which reads in part:
47

xxx
With 29 Members voting in favor, none against and 7 abstentions, the Body
approved, on Third Reading, the Article on the Legislative.
III, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 104 (Friday, October 10,
1986).
48

V, RECORD, CONSTITUTIONAL COMMISSION, JOURNAL NO. 109 (Wednesday,


October 15, 1986), which reads in part:
49

xxx

MR. GUINGONA: Madam President, I have the honor on behalf of the Sponsorship
Committee to officially announce that on October 12, the 1986 Constitutional
Commission had completed under the able, firm and dedicated leadership of our
President, the Honorable Cecilia Muoz Palma, the task of drafting a Constitution for
our people, a Constitution reflective of the spirit of the time a spirit of nationalism,
a spirit of dedication to the democratic way of life, a spirit of liberation and rising
expectations, a spirit of confidence in the Filipino. On that day, Madam President, the
Members of this Constitutional Commission had approved on Third Reading the draft
Constitution of the Republic of the Philippines a practical instrument suited to the
circumstances of our time but which is broad enough to allow future generations to
respond to challenges which we of this generation could not foretell, a Charter which
would seek to establish in this fair land a community characterized by social
progress, political stability, economic prosperity, peace, justice and freedom for all
I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986) AND I RECORD,
CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).
50

51

I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

52

I RECORD, CONSTITUTIONAL COMMISSION 445 (July 10, 1986).

53

I RECORD, CONSTITUTIONAL COMMISSION 486-487 (July 14, 1986).

54

I RECORD, CONSTITUTIONAL COMMISSION 510 (July 14, 1986).

55

II RECORD, CONSTITUTIONAL COMMISSION 434 (July 30, 1986).

Lawrence Tribe, as cited in It is a Constitution We Are Expounding, p. 21 (2009), previously


published in AMERICAN CONSTITUTIONAL LAW, Chapter 1: Approaches to Constitutional
Analysis (3rd ed.2000).
56

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. 134015 July 19, 1999


JUAN DOMINO, petitioner,
vs.
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P.
BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE
CHIONGBIAN-SOLON, intervenor.

DAVIDE, JR., CJ.:


Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of 6
May 1998 1 of the Second Division of the Commission on Elections (hereafter COMELEC), declaring
petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for representative of the Lone
Legislative District of the Province of Sarangani in the 11 May 1998 elections, and the Decision of 29 May
1998 2 of the COMELEC en banc denying DOMINO's motion for reconsideration.
The antecedents are not disputed.

1wphi1.nt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of
the Lone Legislative District of the Province of Sarangani indicating in item nine (9) of his certificate
that he had resided in the constituency where he seeks to be elected for one (1) year and two (2)
months immediately preceding the election. 3
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr.,
Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to
or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022 and assigned to the
Second Division of the COMELEC. Private respondents alleged that DOMINO, contrary to his
declaration in the certificate of candidacy, is not a resident, much less a registered voter, of the
province of Sarangani where he seeks election. To substantiate their allegations, private
respondents presented the following evidence:
1. Annex "A" the Certificate of Candidacy of respondent for the
position of Congressman of the Lone District of the Province of
Sarangani filed with the Office of the Provincial Election Supervisor of
Sarangani on March 25, 1998, where in item 4 thereof he wrote his
date of birth as December 5, 1953; in item 9, he claims he have
resided in the constituency where he seeks election for one (1) year
and two (2) months; and, in item 10, that he is registered voter of
Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani;

2. Annex "B" Voter's Registration Record with SN 31326504 dated


June 22, 1997 indicating respondent's registration at Precinct No.
4400-A, Old Balara, Quezon City;
3. Annex "C" Respondent's Community Tax Certificate No.
11132214C dated January 15, 1997;
4. Annex "D" Certified true copy of the letter of Herson D. Demaala, Deputy Provincial & Municipal Treasurer of Alabel, Sarangani,
dated February 26, 1998, addressed to Mr. Conrado G. Butil, which
reads:
In connection with your letter of even date, we are furnishing you
herewith certified xerox copy of the triplicate copy of COMMUNITY
TAX CERTIFICATE NO. 11132214C in the name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of the same
stub was issued to Carlito Engcong on September 5, 1997, while
Certificate No. 11132213C was also issued to Mr. Juan Domino but
was cancelled and serial no. 11132215C was issued in the name of
Marianita Letigio on September 8, 1997.
5. Annex "E" The triplicate copy of the Community Tax Certificate
No. 11132214C in the name of Juan Domino dated September 5,
1997;
6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P.
Riego dated March 2, 1998 addressed to Mr. Herson D. Dema-ala,
Deputy Provincial Treasurer and Municipal Treasurer of Alabel,
Sarangani, which states:
For easy reference, kindly turn-over to the undersigned for
safekeeping, the stub of Community Tax Certificate containing Nos.
11132201C-11132250C issued to you on June 13, 1997 and paid
under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian.
7. Annex "G" Certificate of Candidacy of respondent for the
position of Congressman in the 3rd District of Quezon City for the
1995 elections filed with the Office of the Regional Election Director,
National Capital Region, on March 17, 1995, where, in item 4 thereof,
he wrote his birth date as December 22, 1953; in item 8 thereof his
"residence in the constituency where I seek to be elected immediately
preceding the election" as 3 years and 5 months; and, in item 9, that
he is a registered voter of Precinct No. 182, Barangay Balara,
Quezon City;

8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF


REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of
respondent dated August 30, 1997 addressed to and received by
Election Officer Mantil Alim, Alabel, Sarangani, on September 22,
1997, stating among others, that "[T]he undersigned's previous
residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III
District, Quezon City; wherein he is a registered voter" and "that for
business and residence purposes, the undersigned has transferred
and conducts his business and reside at Barangay Poblacion, Alabel,
Province of Sarangani prior to this application;"
9. Annex "I" Copy of the SWORN APPLICATION FOR OF
CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS
REGISTRATION of respondent subscribed and sworn to on 22
October 1997 before Election Officer Mantil Allim at Alabel,
Sarangani. 4
For his defense, DOMINO maintains that he had complied with the one-year residence requirement
and that he has been residing in Sarangani since January 1997. In support of the said contention,
DOMINO presented before the COMELEC the following exhibits, to wit:
1. Annex "1" Copy of the Contract of Lease between Nora
Dacaldacal as Lessor and Administrator of the properties of
deceased spouses Maximo and Remedios Dacaldacal and
respondent as Lessee executed on January 15, 1997, subscribed
and sworn to before Notary Public Johnny P. Landero;
2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with
Absolute Deed of sale executed by and between the heirs of
deceased spouses Maximo and Remedios Dacaldacal, namely:
Maria Lourdes, Jupiter and Beberlie and the respondent on
November 4, 1997, subscribed and sworn to before Notary Public
Jose A. Alegario;
3. Annex "3" True Carbon Xerox copy of the Decision dated
January 19, 1998, of the Metropolitan Trial Court of Metro Manila,
Branch 35, Quezon City, in Election Case NO. 725 captioned as "In
the Matter of the Petition for the Exclusion from the List of voters of
Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan
and Zorayda Domino, Petitioners, -versus- Elmer M. Kayanan,
Election Officer, Quezon City, District III, and the Board of Election
Inspectors of Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which reads:
1. Declaring the registration of petitioners as voters of
Precinct No. 4400-A, Barangay Old Balara, in District
III Quezon City as completely erroneous as
petitioners were no longer residents of Quezon City

but of Alabel, Sarangani where they have been


residing since December 1996;
2. Declaring this erroneous registration of petitioners
in Quezon City as done in good faith due to an honest
mistake caused by circumstances beyond their
control and without any fault of petitioners;
3. Approving the transfer of registration of voters of
petitioners from Precint No. 4400-A of Barangay Old
Balara, Quezon City to Precinct No. 14A1 of
Barangay Poblacion of Alabel, Sarangani; and
4. Ordering the respondents to immediately transfer
and forward all the election/voter's registration records
of the petitioners in Quezon City to the Election
Officer, the Election Registration Board and other
Comelec Offices of Alabel, Sarangani where the
petitioners are obviously qualified to excercise their
respective rights of suffrage.
4. Annex "4" Copy of the Application for Transfer of Registration
Records due to Change of Residence addressed to Mantil Alim,
COMELEC Registrar, Alabel, Sarangani, dated August 30, 1997.
5. Annex "5" Certified True Copy of the Notice of Approval of
Application, the roster of applications for registration approved by the
Election Registration Board on October 20, 1997, showing the
spouses Juan and Zorayda Bailon Domino listed as numbers 111 and
112 both under Precinct No. 14A1, the last two names in the slate
indicated as transferees without VRR numbers and their application
dated August 30, 1997 and September 30, 1997, respectively.
6. Annex "6" same as Annex "5"
7. Annex "6-a" Copy of the Sworn Application for Cancellation of
Voter's Previous Registration (Annex "I", Petition);
8. Annex "7" Copy of claim card in the name of respondent
showing his VRR No. 31326504 dated October 20, 1997 as a
registered voter of Precinct No. 14A1, Barangay Poblacion, Alabel,
Sarangani;
9. Annex "7-a" Certification dated April 16, 1998, issued by Atty.
Elmer M. Kayanan, Election Officer IV, District III, Quezon City, which
reads:
This is to certify that the spouses JUAN and ZORAYDA DOMINO are
no longer registered voters of District III, Quezon City. Their

registration records (VRR) were transferred and are now in the


possession of the Election Officer of Alabel, Sarangani.
This certification is being issued upon the request of Mr. JUAN
DOMINO.
10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes
Dacaldacal stating the circumstances and incidents detailing their
alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform
affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda
Lomibao and Elena V. Piodos subscribed and sworn to before Notary
Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their
alleged personal knowledge of respondent's residency in Alabel,
Sarangani;
12. Annex "8-e" A certification dated April 20, 1998, subscribed and
sworn to before Notary Public Bonifacio, containing a listing of the
names of fifty-five (55) residents of Alabel, Sarangani, declaring and
certifying under oath that they personally know the respondent as a
permanent resident of Alabel, Sarangani since January 1997 up to
present;
13. Annexes "9", "9-a" and "9-b" Copies of Individual Income Tax
Return for the year 1997, BIR form 2316 and W-2, respectively, of
respondent; and,
14. Annex "10" The affidavit of respondent reciting the chronology
of events and circumstances leading to his relocation to the
Municipality of Alabel, Sarangani, appending Annexes "A", "B", "C",
"D", "D-1", "E", "F", "G" with sub-markings "G-1" and "G-2" and "H"
his CTC No. 111`32214C dated September 5, 1997, which are the
same as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with submarkings "9-a" and "9-b" except Annex "H". 5
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO
disqualified as candidate for the position of representative of the lone district of Sarangani for lack of
the one-year residence requirement and likewise ordered the cancellation of his certificate of
candidacy, on the basis of the following findings:
What militates against respondent's claim that he has met the residency requirement
for the position sought is his own Voter's Registration Record No. 31326504 dated
June 22, 1997 [Annex "B", Petition] and his address indicated as 24 Bonifacio St.,
Ayala Heights, Old Balara, Quezon City. This evidence, standing alone, negates all
his protestations that he established residence at Barangay Poblacion, Alabel,
Sarangani, as early as January 1997. It is highly improbable, nay incredible, for
respondent who previously ran for the same position in the 3rd Legislative District of

Quezon City during the elections of 1995 to unwittingly forget the residency
requirement for the office sought.
Counting, therefore, from the day after June 22, 1997 when respondent registered at
Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998,
respondent clearly lacks the one (1) year residency requirement provided for
candidates for Member of the House of Representatives under Section 6, Article VI of
the Constitution.
All told, petitioner's evidence conspire to attest to respondent's lack of residence in
the constituency where he seeks election and while it may be conceded that he is a
registered voter as contemplated under Section 12 of R.A. 8189, he lacks the
qualification to run for the position of Congressman for the Lone District of the
Province of Sarangani. 6
On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution
No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation if
winning, considering that the Resolution disqualifying him as candidate had not yet become final and
executory. 7
The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of
Canvassers,8 shows that DOMINO garnered the highest number of votes over his opponents for the
position of Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998,
which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present
Petition for Certiorariwith prayer for Preliminary Mandatory Injunction alleging, in the main, that the
COMELEC committed grave abuse of discretion amounting to excess or lack of jurisdiction when it
ruled that he did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the
Court directed the parties to maintain the status quo prevailing at the time of the filing of the instant
petition. 9
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate
receiving the second highest number of votes, was allowed by the Court to
Intervene. 10 INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention 11 is
asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as the duly
elected representative of Sarangani in the 11 May 1998 elections.
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court of
Quezon City declaring petitioner as resident of Sarangani and not of
Quezon City is final, conclusive and binding upon the whole world,
including the Commission on Elections.

b. Whether or not petitioner herein has resided in the subject


congressional district for at least one (1) year immediately preceding
the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over the
petition a quo for the disqualification of petitioner. 12
The first issue.
The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the
exclusion proceedings declaring him a resident of the Province of Sarangani and not of Quezon City
is final and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a
petition to deny due course to or cancel certificate of candidacy. In the exercise of the said
jurisdiction, it is within the competence of the COMELEC to determine whether false representation
as to material facts was made in the certificate of candidacy, that will include, among others, the
residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to
the right of DOMINO to be included or excluded from the list of voters in the precinct within its
territorial jurisdicton, does not preclude the COMELEC, in the determination of DOMINO's
qualification as a candidate, to pass upon the issue of compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are summary in
character. Thus, the factual findings of the trial court and its resultant conclusions in the exclusion
proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are
not conclusive upon the COMELEC. Although the court in inclusion or exclusion proceedings may
pass upon any question necessary to decide the issue raised including the questions of citizenship
and residence of the challenged voter, the authority to order the inclusion in or exclusion from the list
of voters necessarily caries with it the power to inquire into and settle all matters essential to the
exercise of said authority. However, except for the right to remain in the list of voters or for being
excluded therefrom for the particular election in relation to which the proceedings had been held, a
decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire
the nature of res judicata. 13 In this sense, it does not operate as a bar to any future action that a party
may take concerning the subject passed upon in the proceeding. 14 Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter's political status, nor bar subsequent proceedings on
his right to be registered as a voter in any other election. 15
Thus, in Tan Cohon v. Election Registrar 16 we ruled that:
. . . It is made clear that even as it is here held that the order of the City Court in
question has become final, the same does not constitute res adjudicata as to any of
the matters therein contained. It is ridiculous to suppose that such an important and
intricate matter of citizenship may be passed upon and determined with finality in
such a summary and peremptory proceeding as that of inclusion and exclusion of
persons in the registry list of voters. Even if the City Court had granted appellant's
petition for inclusion in the permanent list of voters on the allegation that she is a

Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been
left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its
jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and
ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old Balara,
Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the
competence of the trial court, in an exclusion proceedings, to declare the challenged voter a resident
of another municipality. The jurisdiction of the lower court over exclusion cases is limited only to
determining the right of voter to remain in the list of voters or to declare that the challenged voter is
not qualified to vote in the precint in which he is registered, specifying the ground of the voter's
disqualification. The trial court has no power to order the change or transfer of registration from one
place of residence to another for it is the function of the election Registration Board as provided
under Section 12 of R.A. No. 8189. 17 The only effect of the decision of the lower court excluding the
challenged voter from the list of voters, is for the Election Registration Board, upon receipt of the final
decision, to remove the voter's registration record from the corresponding book of voters, enter the order
of exclusion therein, and thereafter place the record in the inactive file. 18
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter and
cause of action are indispensable requirements for the application of said doctrine. Neither herein
Private Respondents nor INTERVENOR, is a party in the exclusion proceedings. The Petition for
Exclusion was filed by DOMINDO himself and his wife, praying that he and his wife be excluded
from the Voter's List on the ground of erroneous registration while the Petition to Deny Due Course
to or Cancel Certificate of Candidacy was filed by private respondents against DOMINO for alleged
false representation in his certificate of candidacy. For the decision to be a basis for the dismissal by
reason of res judicata, it is essential that there must be between the first and the second action
identity of parties, identity of subject matter and identity of causes of action. 19 In the present case, the
aforesaid essential requisites are not present. In the case of Nuval v. Guray, et al., 20 the Supreme Court
in resolving a similar issue ruled that:
The question to be solved under the first assignment of error is whether or not the
judgment rendered in the case of the petition for the exclusion of Norberto Guray's
name from the election list of Luna, is res judicata, so as to prevent the institution
and prosecution of an action in quo warranto, which is now before us.
The procedure prescribed by section 437 of the Administrative Code, as amended by
Act No. 3387, is of a summary character and the judgment rendered therein is not
appealable except when the petition is tried before the justice of the peace of the
capital or the circuit judge, in which case it may be appealed to the judge of first
instance, with whom said two lower judges have concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his dual capacity as
qualified voter of the municipality of Luna, and as a duly registered candidate for the
office of president of said municipality, against Norberto Guray as a registered voter
in the election list of said municipality. The present proceeding of quo warranto was
interposed by Gregorio Nuval in his capacity as a registered candidate voted for the
office of municipal president of Luna, against Norberto Guray, as an elected
candidate for the same office. Therefore, there is no identity of parties in the two
cases, since it is not enough that there be an identity of persons, but there must be

an identity of capacities in which said persons litigate. (Art. 1259 of the Civil Code;
Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the litigation, or the litigious
matter was the exclusion of Norberto Guray as a voter from the election list of the
municipality of Luna, while in the present que warranto proceeding, the object of the
litigation, or the litigious matter is his exclusion or expulsion from the office to which
he has been elected. Neither does there exist, then, any identity in the object of the
litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action was that Norberto Guray
had not the six months' legal residence in the municipality of Luna to be a qualified
voter thereof, while in the present proceeding of quo warranto, the cause of action is
that Norberto Guray has not the one year's legal residence required for eligibility to
the office of municipal president of Luna. Neither does there exist therefore, identity
of causes of action.
In order that res judicata may exist the following are necessary: (a) identity of parties;
(b) identity of things; and (c) identity of issues (Aquino v. Director of Lands, 39 Phil.
850). And as in the case of the petition for excluision and in the
present quo warranto proceeding, as there is no identity of parties, or of things or
litigious matter, or of issues or causes of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding
the 11 May 1998 election as stated in his certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for
suffrage and for elective office, means the same thing as "domicile," which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention. 21 "Domicile" denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to return. 22 "Domicile" is a question of
intention and circumstances. In the consideration of circumstances, three rules must be borne in mind,
namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it
remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time. 23
Records show that petitioner's domicile of origin was Candon, Ilocos
Sur 24 and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights,
Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the
3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively
abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Province
of Sarangani.
A person's "domicile" once established is considered to continue and will not be deemed lost until a
new one is established. 25 To successfully effect a change of domicile one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning the former place of

residence and establishing a new one and definite acts which correspond with the
purpose. 26 In other words, there must basically be animus manendi coupled with animus non revertendi.
The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change
of residence must be voluntary; and the residence at the place chosen for the new domicile must be
actual. 27

It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since
December 1996 was sufficiently established by the lease of a house and lot located therein in
January 1997 and by the affidavits and certifications under oath of the residents of that place that
they have seen petitioner and his family residing in their locality.
While this may be so, actual and physical is not in itself sufficient to show that from said date he had
transferred his residence in that place. To establish a new domicile of choice, personal presence in
the place must be coupled with conduct indicative of that intention. While "residence" simply requires
bodily presence in a given place, "domicile" requires not only such bodily presence in that place but
also a declared and probable intent to make it one's fixed and permanent place of abode, one's
home. 28
As a general rule, the principal elements of domicile, physical presence in the locality involved and
intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of
domicile will result if either of these elements is absent. Intention to acquire a domicile without actual
residence in the locality does not result in acquisition of domicile, nor does the fact of physical
presence without intention. 29
The lease contract entered into sometime in January 1997, does not adequately support a change of
domicile. The lease contract may be indicative of DOMINO's intention to reside in Sarangani but it
does not engender the kind of permanency required to prove abandonment of one's original
domicile. The mere absence of individual from his permanent residence, no matter how long, without
the intention to abandon it does not result in loss or change of
domicile. 30 Thus the date of the contract of lease of a house and lot located in the province of
Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as the
reckoning period of the one-year residence requirement.
Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened
by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive
of residence, it does give rise to a strong presumption of residence especially in this case where
DOMINO registered in his former barangay. Exercising the right of election franchise is a deliberate
public assertion of the fact of residence, and is said to have decided preponderance in a doubtful
case upon the place the elector claims as, or believes to be, his residence. 31 The fact that a party
continously voted in a particular locality is a strong factor in assisting to determine the status of his
domicile. 32
His claim that his registration in Quezon City was erroneous and was caused by events over which
he had no control cannot be sustained. The general registration of voters for purposes of the May
1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22. 33
While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be
bought the house he was renting on November 4, 1997, that he sought cancellation of his previous
registration in Qezon City on 22 October 1997, 34 and that he applied for transfer of registration from

Quezon City to Sarangani by reason of change of residence on 30 August 1997, 35 DOMINO still falls short
of the one year residency requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual presence in the district
one intends to represent must satisfy the length of time prescribed by the fundamental
law. 36 Domino's failure to do so rendered him ineligible and his election to office null and void. 37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has
jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such jurisdiction
continues even after election, if for any reason no final judgment of disqualification is rendered
before the election, and the candidate facing disqualification is voted for and receives the highest
number of votes 38 and provided further that the winning candidate has not been proclaimed or has taken
his oath of office. 39
It has been repeatedly held in a number of cases, that the House of Representatives Electoral
Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and
qualifications of members of Congress as provided under Section 17 of Article VI of the Constitution
begins only after a candidate has become a member of the House of Representatives. 40
The fact of obtaining the highest number of votes in an election does not automatically vest the
position in the winning candidate. 41 A candidate must be proclaimed and must have taken his oath of
office before he can be considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional
District of the Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the
COMELEC on the day of the election ordering the suspension of DOMINO's proclamation should he
obtain the winning number of votes. This resolution was issued by the COMELEC in view of the nonfinality of its 6 May 1998 resolution disqualifying DOMINO as candidate for the position.
Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional
District of the Province of Sarangani he cannot be deemed a member of the House of
Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which has jurisdiction
over the issue of his ineligibility as a candidate. 42
Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate for the position of representative of the
province of Sarangani, may INTERVENOR, as the candidate who received the next highest number
of votes, be proclaimed as the winning candidate?
It is now settled doctrine that the candidate who obtains the second highest number of votes may not
be proclaimed winner in case the winning candidate is disqualified. 43 In every election, the people's
choice is the paramount consideration and their expressed will must, at all times, be given effect. When
the majority speaks and elects into office a candidate by giving the highest number of votes cast in the
election for that office, no one can be declared elected in his place. 44

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of which have positively declared
through their ballots that they do not choose him. 45 To simplistically assume that the second placer
would have received the other votes would be to substitute our judgment for the mind of the voters. He
could not be considered the first among qualified candidates because in a field which excludes the
qualified candidate, the conditions would have substantially changed. 46
Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is fundamental idea in all republican forms
of government that no one can be declared elected and no measure can be declared carried unless
he or it receives a majority or plurality of the legal votes cast in the election. 47
The effect of a decision declaring a person ineligible to hold an office is only that the election fails
entirely, that the wreath of victory cannot be transferred 48 from the disqualified winner to the repudiated
loser because the law then as now only authorizes a declaration of election in favor of the person who
has obtained a plurality of votes 49 and does not entitle the candidate receiving the next highest number of
votes to be declared elected. In such case, the electors have failed to make a choice and the election is a
nullity. 50 To allow the defeated and repudiated candidate to take over the elective position despite his
rejection by the electorate is to disenfranchise the electorate without any fault on their part and to
undermine the importance and meaning of democracy and the people's right to elect officials of their
choice. 51
INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be
sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case 52 to wit: if the
electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness
within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying
their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher
number of votes may be deemed elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an
ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered
before the election, however, the same is not yet final and executory. In fact, it was no less than the
COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for
the office and ordered that the votes cast for him be counted as the Resolution declaring him
ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been
cast in the sincere belief that he was a qualified candidate, without any intention to misapply their
franchise. Thus, said votes can not be treated as stray, void, or meaningless. 53
WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the
COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are hereby
AFFIRMED.
1wphi1.nt

SO ORDERED.
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Buena, Gonzaga-Reyes and Santiago,
JJ., concur.

Panganiban J., In the result; please see separate opinion.


Quisumbing, J., In the result, only insofar or Petitioner Domino is adjudged disqualified.
Purisima and Pardo JJ., took no part.

Separate Opinions
PANGANIBAN, J., separate opinion;
I concur "in the result": the petitioner failed to fulfill the one-year residence requirement in order to
qualify as a candidate for congressman of the lone district of Sarangani. With all due respect, I
disagree however with the majority view that residence as a qualification for candidacy for an
elective public office imports the same meaning as domicile.
That a member of the House of Representative must be a resident of the district which he or she
seeks to represent "for a period of not less than one year immediately preceding the day of the
election" 1 is a constitutional requirement that should be interpreted in the sense in which ordinary lay
persons understand it. The common people who ratified the Constitution and were thereafter expected to
abide by it would normally refer to the journals of the Constitutional Commission in order to understand
the words and phrases contained therein. Rather, they would usually refer to the common source being
used when they look up for the meaning of words the dictionary. 2 In this sense, Webster's definition of
residence 3 should be controlling.
When the Constitution speaks of residence, the word should be understood, consistent with
Webster, to mean actual, physical and personal presence in the district that a candidate seeks to
represent. In other words, the candidate's presence should be substantial enough to show by overts
acts his intention to fulfill the duties of the position he seeks.
If the framers of our basic law intended our people to understand residence as legal domicile, they
should have said so. Then our people would have looked up the meaning of domicile and would
have understood the constitutional provision in that context. However, the framers of our Constitution
did not. I therefore submit that residence must be understood in its common dictionary meaning as
understood by ordinary lay persons.
At any rate, the original concept of domicile, which arose from American jurisprudence, was not
intended to govern political rights. Rather, it was designed to resolve the conflict of laws between or
among states where a decedent may have lived for various reasons, for the purpose of determining
which law was applicable as regards his estate. Allow me to quote this short disquisition: 4
. . . This question first came before the courts at an early day, long before our present
easy and extensive means of transportation, and at a time before the present ready
movement from one country to another. At that time, men left for Europe for the

Western Continent or elsewhere largely for purposes of adventure or in search of an


opportunity for the promotion of commerce. It was at the time before the invention of
the steamboat and before the era of the oceanic cable. Men left their native land
knowing that they would be gone for long periods of time, and that means of
communication with their home land were infrequent, difficult, and slow. The
traditions of their native country were strong with these men. In the event of death,
while absent, they desired that their property should descend in accordance with the
laws of the land of their birth. Many such men where adventurers who had the
purpose and intent to eventually return to the land of their nativity. There was a large
degree of sentiment connected with the first announcement of the rules of law in the
matter of the estates of such men. . . .
xxx xxx xxx
These reasons, which were, to an extent at least, historical and patriotic, found early
expression in the decisions of the courts on the question of domicile. . . .
Subsequently, domicile was used in other "conflicts cases involving taxation, divorce and other civil
matters. To use it to determine qualifications for political office is to enlarge its meaning beyond what
was intended, resulting in strained and contortive interpretations of the Constitution.
Specifically, I submit that applying the concept of domicile in determining residence as a qualification
for an elective office would negate the objective behind the residence requirement of one year (or six
months, in the case of local positions). This required period of residence preceding the day of the
election, I believe, is rooted in the desire that officials of districts or localities be acquainted not only
with the metes and bounds of their constituencies but, more important, with the constituents
themselves their needs, difficulties, potentials for growth and development and all matters vital to
their common welfare. Such requisite period would precisely give candidates the opportunity to be
familiar with their desired constituencies, and likewise for the electorate to evaluate their fitness for
the offices they seek.
If all that is required of elective officials is legal domicile, then they would qualify even if, for several
years prior to the election, they have never set foot in their districts (or in the country, for that matter),
since it is possible to maintain legal domicile even without actual presence, provided one retains
the animus revertendi or the intention to return.
The Constitution is the most basic law of the land. It enshrines the most cherished aspirations and
ideals of the population at large. It is not a document reserved only for sholarly disquisition by the
most eminent legal minds of the land. In ascertaining its import, lawyers are not meant to quibble
over it, to define its legal niceties, or to articulate its nuances. Its contents and words should be
interpreted in the sense understood by the ordinary men and women who place their lives on the line
in its defense and who pin their hopes for a better life on its fulfillment.
The call for simplicity in understanding and interpreting our Constitution has been made a number of
times. About three decades ago, this Court declared: 5
It is to be assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in which case the significance

thus attached to them prevails. As the Constitution is not primarily a lawyer's


document, it being essential for the rule of law to obtain that it should ever be present
in the people's consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the text
of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what
they say. Thus there are cases where the need for construction is reduced to a
minimum.
Having said this, I still believe that Petitioner Juan Domino failed to adduce sufficient convincing
evidence to prove his actual, physical and personal presence in the district of Sarangani for at least
one year prior to the 1998 elections.
WHEREFORE, I vote to DISMISS the Petition at bar.
Separate Opinions
PANGANIBAN, J., separate opinion;
I concur "in the result": the petitioner failed to fulfill the one-year residence requirement in order to
qualify as a candidate for congressman of the lone district of Sarangani. With all due respect, I
disagree however with the majority view that residence as a qualification for candidacy for an
elective public office imports the same meaning as domicile.
That a member of the House of Representative must be a resident of the district which he or she
seeks to represent "for a period of not less than one year immediately preceding the day of the
election" 1 is a constitutional requirement that should be interpreted in the sense in which ordinary lay
persons understand it. The common people who ratified the Constitution and were thereafter expected to
abide by it would normally refer to the journals of the Constitutional Commission in order to understand
the words and phrases contained therein. Rather, they would usually refer to the common source being
used when they look up for the meaning of words the dictionary. 2 In this sense, Webster's definition of
residence 3 should be controlling.
When the Constitution speaks of residence, the word should be understood, consistent with
Webster, to mean actual, physical and personal presence in the district that a candidate seeks to
represent. In other words, the candidate's presence should be substantial enough to show by overts
acts his intention to fulfill the duties of the position he seeks.
If the framers of our basic law intended our people to understand residence as legal domicile, they
should have said so. Then our people would have looked up the meaning of domicile and would
have understood the constitutional provision in that context. However, the framers of our Constitution
did not. I therefore submit that residence must be understood in its common dictionary meaning as
understood by ordinary lay persons.
At any rate, the original concept of domicile, which arose from American jurisprudence, was not
intended to govern political rights. Rather, it was designed to resolve the conflict of laws between or
among states where a decedent may have lived for various reasons, for the purpose of determining
which law was applicable as regards his estate. Allow me to quote this short disquisition: 4

. . . This question first came before the courts at an early day, long before our present
easy and extensive means of transportation, and at a time before the present ready
movement from one country to another. At that time, men left for Europe for the
Western Continent or elsewhere largely for purposes of adventure or in search of an
opportunity for the promotion of commerce. It was at the time before the invention of
the steamboat and before the era of the oceanic cable. Men left their native land
knowing that they would be gone for long periods of time, and that means of
communication with their home land were infrequent, difficult, and slow. The
traditions of their native country were strong with these men. In the event of death,
while absent, they desired that their property should descend in accordance with the
laws of the land of their birth. Many such men where adventurers who had the
purpose and intent to eventually return to the land of their nativity. There was a large
degree of sentiment connected with the first announcement of the rules of law in the
matter of the estates of such men. . . .
xxx xxx xxx
These reasons, which were, to an extent at least, historical and patriotic, found early
expression in the decisions of the courts on the question of domicile. . . .
Subsequently, domicile was used in other "conflicts cases involving taxation, divorce and other civil
matters. To use it to determine qualifications for political office is to enlarge its meaning beyond what
was intended, resulting in strained and contortive interpretations of the Constitution.
Specifically, I submit that applying the concept of domicile in determining residence as a qualification
for an elective office would negate the objective behind the residence requirement of one year (or six
months, in the case of local positions). This required period of residence preceding the day of the
election, I believe, is rooted in the desire that officials of districts or localities be acquainted not only
with the metes and bounds of their constituencies but, more important, with the constituents
themselves their needs, difficulties, potentials for growth and development and all matters vital to
their common welfare. Such requisite period would precisely give candidates the opportunity to be
familiar with their desired constituencies, and likewise for the electorate to evaluate their fitness for
the offices they seek.
If all that is required of elective officials is legal domicile, then they would qualify even if, for several
years prior to the election, they have never set foot in their districts (or in the country, for that matter),
since it is possible to maintain legal domicile even without actual presence, provided one retains
the animus revertendi or the intention to return.
The Constitution is the most basic law of the land. It enshrines the most cherished aspirations and
ideals of the population at large. It is not a document reserved only for sholarly disquisition by the
most eminent legal minds of the land. In ascertaining its import, lawyers are not meant to quibble
over it, to define its legal niceties, or to articulate its nuances. Its contents and words should be
interpreted in the sense understood by the ordinary men and women who place their lives on the line
in its defense and who pin their hopes for a better life on its fulfillment.
The call for simplicity in understanding and interpreting our Constitution has been made a number of
times. About three decades ago, this Court declared: 5

It is to be assumed that the words in which constitutional provisions are couched


express the objective sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in which case the significance
thus attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be present
in the people's consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the text
of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what
they say. Thus there are cases where the need for construction is reduced to a
minimum.
Having said this, I still believe that Petitioner Juan Domino failed to adduce sufficient convincing
evidence to prove his actual, physical and personal presence in the district of Sarangani for at least
one year prior to the 1998 elections.
WHEREFORE, I vote to DISMISS the Petition at bar.
Footnotes
1 Annex "A" of Petition, Rollo 41-50. Per Desamito, J., Comm., with Guiani, J. and Calderon,
A., Comms., concurring.
2 Rollo, 51-54.
3 Annex "1" of Comment in Intervention, Rollo, 304.
4 Supra note 1, at 42-44.
5 Rollo, 45-48.
6 Rollo, 48-49.
7 Annex "6" of Petition, id., 167-168.
8 Annex "H," id., 169.
9 Rollo, 352.
10 Id., 1535.
11 Id., 241-303.
12 Petition, 15, Rollo, 17.
13 See Ozamis v. Zosa, 34 SCRA 425 [1970].

14 Mayor v. Villacete, et al., 2 SCRA 542, 544 [1961]; Tan Cohon v. Election Registrar, 29
SCRA 244 [1969].
15 Supra note 13, at 427-428.
16 Supra note 14, at 250.
17 Sec. 12. Change of Residence to Another City or Municipality. Any registered voter
who has transferred residence to another city or municipality may apply with the Election
Officer of his new residence for the transfer of his registration records.
The application for transfer of registration shall be subject to the requirements of notice and
hearing and the approval of the Election Registration Board, in accordance with this Act.
Upon approval of the application for transfer, and after notice of such approval to the Election
Officer of the former residence of the voter, said Election Officer shall transmit by registered
mail the voter's registration record to the Election Officer of the voter's new residence.
18 2nd par. of Sec. 142, Art. XII of the Omnibus Election Code.
19 See Mendiola v. Court of Appeals, 258 SCRA 492 [1996].
20 52 Phil. 645, 647-648 [1928].
21 Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415 [1993], citing Nuval v.
Guray, supra note. 7.
22 Id., citing Ong Huan Tin v. Republic, 19 SCRA 966 [1967].
23 Alcantara v. Secretary of Interior, 61 Phil. 459, 465 [1935].
24 Annex "2," supra note 3, at 305.
25 Co v. Electoral Tribunal of the House of Representative, 199 SCRA 692, 711 [1991].
26 Aquino v. COMELEC, 248 SCRA 400, 423, [1995], citing 18 Am Jur, 211-220.
27 Supra note 18, at 415, citing 17 Am. Jur., sec. 16, pp. 599-601; Romualdez v. RTC, Br. 7,
Tacloban City, 226 SCRA 408, 415 [1993].
28 Velilla v. Posadas, 62 Phil. 624, 631-632 [1935].
29 25 Am Jur 2d; Domicil, 14.
30 Supra note 24, at 715.
31 Ex Parte Weissinger; 247 Ala 113, 22 So 2d 510.
32 Re Meyers' Estate, 137 Neb 60, 288 NW 35.

33 Sec. 7, R.A. No. 8189.


34 Annex "E-2," supra note 3, at 100-101.
35 Annex "E-4," Rollo, 105.
36 Romualdez-Marcos v. COMELEC, 248 SCRA 300 [1995].
37 Gaerlan v. Catubig, 17 SCRA 376 [1966]; Sanchez v. Del Rosario, 1 SCRA 1102 [1961].
38 Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence
of his guilt is strong.
Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petitions to deny due course to or cancel a
certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
39 Lazatin v. COMELEC, 157 SCRA 337 [1998]; Ututalum v. COMELEC, 181 SCRA 335
[1990].
40 Aquino v. COMELEC, et al., 248 SCRA 400, [1995].
41 Id., at 417; supra note 33, al 340-341.
42 Fernandez v. COMELEC, et al., G.R. No. 135354, October 20, 1998.
43 Labo v. COMELEC, 176 SCRA 1 [1989]; Abella v. COMELEC, 201 SCRA 253
[1991]; supra note 33.
44 Benito v. COMELEC, 235 SCRA, 436, 441 [1994].
45 Geronimo v. Ramos, 136 SCRA 435, 446, [1985].
46 Supra note 37, at 424.
47 Supra note 41, at 446-447, citing 20 Corpus Juris 2nd, S 243, p. 676.
48 Supra note 41, at 452, citing Luison v. Garcia, 103 Phil. 457 [1958].
49 Id., citing Villar v. Paraiso, 96 Phil. 664 [1955].
50 Id., citing Llamaso v. Ferrer, 84 Phil. 490 [1949].

51 Supra note 41, at 441-442, citing Badelles v. Cabile, 27 SCRA 113, 121 [1969].
52 211 SCRA 297, 312 [1992].
53 Reyes v. COMELEC, 254 SCRA 514, 529 [1996].
PANGANIBAN, J., separate opinion;
1 6, Art of the 1987 Constitution.
2 See Dissenting Opinion in Marcos v. Comelec, 255 SCRA xi, October 25, 1995.
3 Webster's New Collegiate Dictionary, G. & C. Merriam Co., 1979 ed.: " . . . the act or fact of
dwelling in a place for some time . . .; the act or fact of living or regularly staying at or in
some place for the discharge of a duty or the enjoyment of a benefit . . .; the place where
one actually lives as distinguished from his domicile or a place of temporary sojourn . . . ."
4 In Re Jone' Estate, 182 NW 277, 229-230 (1921); 16 ALR 1286.
5 JM Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423, February 18,
1970; per Fernando, J. (later CJ).

B. THEORY OF JUDICIAL REVIEW

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-45081

July 15, 1936

JOSE A. ANGARA, petitioner,


vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of
a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from
taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the
election of said petitioner as member of the National Assembly for the first assembly district of the
Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the respondents are as
follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for
the position of member of the National Assembly for the first district of the Province of
Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the said district, for having received the most
number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled, passed the
following resolution:

[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes no
se hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y
confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A.
Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said respondent be declared elected member of the
National Assembly for the first district of Tayabas, or that the election of said position be
nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6
of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en o
antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a)
that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which protests against the election of
its members should be presented; (b) that the aforesaid resolution has for its object, and is
the accepted formula for, the limitation of said period; and (c) that the protest in question was
filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the
Motion of Dismissal" alleging that there is no legal or constitutional provision barring the
presentation of a protest against the election of a member of the National Assembly after
confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the issuance of the writ prayed
for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely
as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the Legislative
Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the Constitution,
whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted
to them for decision and to matters involving their internal organization, the Electoral
Commission can regulate its proceedings only if the National Assembly has not availed of its
primary power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of
the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question
herein raised because it involves an interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an instrumentality
of the Legislative Department invested with the jurisdiction to decide "all contests relating to
the election, returns, and qualifications of the members of the National Assembly"; that in
adopting its resolution of December 9, 1935, fixing this date as the last day for the
presentation of protests against the election of any member of the National Assembly, it
acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by
the Constitution to adopt the rules and regulations essential to carry out the power and
functions conferred upon the same by the fundamental law; that in adopting its resolution of
January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in
the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is beyond the judicial
cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the electoral Commission of its jurisdiction to take
cognizance of election protests filed within the time that might be set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by
the Constitution as an instrumentality of the Legislative Department, and is not an "inferior
tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the
Code of Civil Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March
2, 1936, setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on December 9,
1935, there was no existing law fixing the period within which protests against the election of
members of the National Assembly should be filed; that in fixing December 9, 1935, as the

last day for the filing of protests against the election of members of the National Assembly,
the Electoral Commission was exercising a power impliedly conferred upon it by the
Constitution, by reason of its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral
Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral Commission
of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the
jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the National Assembly
of the election of its members, and that such confirmation does not operate to limit the period
within which protests should be filed as to deprive the Electoral Commission of jurisdiction
over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the Constitution,
endowed with quasi-judicial functions, whose decision are final and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,
corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be
article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended
thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition
from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress
of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the
petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the merits of the case" by resolution of
this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two principal
propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter
of the controversy upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in evading the

issue. Being a case prim impressionis, it would hardly be consistent with our sense of duty to
overlook the broader aspect of the question and leave it undecided. Neither would we be doing
justice to the industry and vehemence of counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the legislative power that this assent is
required in the enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or
three-fourths, as the case may be, of the National Assembly. The President has also the right to
convene the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointments of certain officers; and the
concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in
its power to determine what courts other than the Supreme Court shall be established, to define their
jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between
the several departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable
if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where no express constitutional grant is
found in their constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for a period of
more than one and a half centuries. In our case, this moderating power is granted, if not expressly,
by clear implication from section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the governments of the government.
But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is not
"the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also
be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression
on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed
the election of the herein petitioner to the said body. On the other hand, the Electoral Commission
has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of
protests against the election, returns and qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and
qualifications of members of the National Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.
But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing protests against the
election, returns and qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand, and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of
American experience and of our own, upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral Commission may not
be interfered with, when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under the fundamental law between

department powers and agencies of the government are necessarily determined by the judiciary in
justifiable and appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted the American type where the
written constitution is interpreted and given effect by the judicial department. In some countries
which have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is
taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition
courts are bound to assume what is logically their function. For instance, the Constitution of Poland
of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art.
81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in Norway,
Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123,
Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass
upon the validity of ordinary laws. In our case, the nature of the present controversy shows the
necessity of a final constitutional arbiter to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the
opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members of the National
Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second
proposition and determine whether the Electoral Commission has acted without or in excess of its
jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of
the protest filed against the election of the herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the
petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein. The senior Justice in the Commission shall be its
Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly." It is imperative, therefore, that
we delve into the origin and history of this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly appreciate its full meaning, import
and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5)
laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications
of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United
States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of
its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That the Senate and House of
Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of
their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the

particular case s therein specified. This court has had occasion to characterize this grant of power to
the Philippine Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of deciding contested
elections to the legislature was taken by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report
on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered
to hear legislature but also against the election of executive officers for whose election the vote of
the whole nation is required, as well as to initiate impeachment proceedings against specified
executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme Court and six members of the house of the
legislature to which the contest corresponds, three members to be designed by the majority party
and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a
member in which case the latter shall preside. The foregoing proposal was submitted by the
Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative representation to four members, that is,
two senators to be designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of
Representatives, and in awarding representation to the executive department in the persons of two
representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the
Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral Commission,
constituted, as to each House, by three members elected by the members of the party
having the largest number of votes therein, three elected by the members of the party having
the second largest number of votes, and as to its Chairman, one Justice of the Supreme
Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as
proposed by the Committee on Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor
of the proposition of the Committee on Legislative Power to create a similar body with reduced
powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The
Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect
to the composition of the Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to
the Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the Members of the National Assembly and all
cases contesting the election of any of its Members shall be judged by an Electoral
Commission, composed of three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others,
proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the

following: "The National Assembly shall be the soled and exclusive judge of the elections, returns,
and qualifications of the Members", the following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of the said draft:
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Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the
first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and
qualifications of the Members of the National Assembly and all cases contesting the election
of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask
from the gentleman from Capiz whether the election and qualification of the member whose
elections is not contested shall also be judged by the Electoral Commission.
Mr. ROXAS. If there is no question about the election of the members, there is nothing to be
judged; that is why the word "judge" is used to indicate a controversy. If there is no question
about the election of a member, there is nothing to be submitted to the Electoral Commission
and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm
also the election of those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the
House of Representatives confirming the election of its members is just a matter of the rules
of the assembly. It is not constitutional. It is not necessary. After a man files his credentials
that he has been elected, that is sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body, because
he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected?
What happens with regards to the councilors of a municipality? Does anybody confirm their
election? The municipal council does this: it makes a canvass and proclaims in this case
the municipal council proclaims who has been elected, and it ends there, unless there is a
contest. It is the same case; there is no need on the part of the Electoral Commission unless
there is a contest. The first clause refers to the case referred to by the gentleman from
Cavite where one person tries to be elected in place of another who was declared elected.
From example, in a case when the residence of the man who has been elected is in
question, or in case the citizenship of the man who has been elected is in question.
However, if the assembly desires to annul the power of the commission, it may do so by
certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers exercised by
the assembly referring to the elections, returns and qualifications of the members. When
there is no contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman
from Ilocos Norte when I arose a while ago. However I want to ask more questions from the
delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the
election as separate from the first part of the sections which refers to elections, returns and
qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance,
refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to contest
the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is,
even if two-thirds of the assembly believe that a member has not the qualifications provided
by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National Assembly
even though that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons,
Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft
as amended, Delegate Roxas speaking for the Sponsorship Committee said:
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Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion


apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The
elections, returns and qualifications of the members of the National Assembly" parece que
da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros
que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon
en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases
contesting the election", de modo que los jueces de la Comision Electoral se limitaran
solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took
place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a
la minoria y tres a la Corte Suprema, no cree Su Seoria que esto equivale practicamente
a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa
forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la
Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto
los de la mayoria como los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
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The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power
to decide contests relating to the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six
(56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing
the representation of the minority party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority party. The Convention rejected
this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the nonpartisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National Assembly,
three elected by the members of the party having the second largest number of votes, and
three justices of the Supreme Court designated by the Chief Justice, the Commission to be
presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National Assembly,
three of whom shall be nominated by the party having the largest number of votes, and three
by the party having the second largest number of votes therein. The senior Justice in the
Commission shall be its chairman. The Electoral Commission shall be the sole judge of the
election, returns, and qualifications of the Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee,
through President Recto, to effectuate the original intention of the Convention, agreed to insert the
phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which
was accordingly accepted by the Convention.
The transfer of the power of determining the election, returns and qualifications of the members of
the legislature long lodged in the legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the
disposition of contests by the House of Commons in the following passages which are partly quoted
by the petitioner in his printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be the exclusive judges of
the elections, returns, and qualifications of their members, until the year 1770, two modes of
proceeding prevailed, in the determination of controverted elections, and rights of
membership. One of the standing committees appointed at the commencement of each
session, was denominated the committee of privileges and elections, whose functions was to
hear and investigate all questions of this description which might be referred to them, and to
report their proceedings, with their opinion thereupon, to the house, from time to time. When
an election petition was referred to this committee they heard the parties and their witnesses
and other evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed to by
the house. The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in substantially
the same manner as by a committee. The committee of privileges and elections although a
select committee. The committee of privileges and elections although a select committee

was usually what is called an open one; that is to say, in order to constitute the committee, a
quorum of the members named was required to be present, but all the members of the
house were at liberty to attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous to the
year 1770, controverted elections had been tried and determined by the house of commons,
as mere party questions, upon which the strength of contending factions might be tested.
Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the Chippenham election. Mr.
Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every
principle of decency and justice were notoriously and openly prostituted, from whence the
younger part of the house were insensibly, but too successfully, induced to adopt the same
licentious conduct in more serious matters, and in questions of higher importance to the
public welfare." Mr. George Grenville, a distinguished member of the house of commons,
undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the
unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections,
or returns of members to serve in parliament." In his speech to explain his plan, on the
motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead
of trusting to the merits of their respective causes, the principal dependence of both parties
is their private interest among us; and it is scandalously notorious that we are as earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not
bound to act by the principles of justice, but by the discretionary impulse of our own
inclinations; nay, it is well known, that in every contested election, many members of this
house, who are ultimately to judge in a kind of judicial capacity between the competitors,
enlist themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest
impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill
which met with the approbation of both houses, and received the royal assent on the 12th of
April, 1770. This was the celebrated law since known by the name of the Grenville Act; of
which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of
commons, and the security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the apparent success of the
remedy, may have led many of the contemporaries of the measure to the information of a
judgement, which was not acquiesced in by some of the leading statesmen of the day, and
has not been entirely confirmed by subsequent experience. The bill was objected to by Lord
North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who
had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament,
and a total abrogation of one of the most important rights and jurisdictions of the house of
commons.
As early as 1868, the House of Commons in England solved the problem of insuring the nonpartisan settlement of the controverted elections of its members by abdicating its prerogative to two
judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules
of court made for the purpose. Having proved successful, the practice has become imbedded in
English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and
Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of
Canada, election contests which were originally heard by the Committee of the House of Commons,

are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High Court. In Hungary,
the organic law provides that all protests against the election of members of the Upper House of the
Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par.
6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of
Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927
(art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the legislature
and the judiciary is by no means unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for such a contingency, Congress
passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The decision of the commission was to be
binding unless rejected by the two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard, judging from the observations of
Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913]
Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding
historical interest.
The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When , therefore, they deemed it
wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive
function of passing upon and determining the election, returns and qualifications of the members of
the National Assembly, they must have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional the creation of the Electoral
Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln,
First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people, acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution.

Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes,
when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very
indicative. Its compositions is also significant in that it is constituted by a majority of members of the
legislature. But it is a body separate from and independent of the legislature.
The grant of power to the Electoral Commission to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, is intended to be as complete and
unimpaired as if it had remained originally in the legislature. The express lodging of that power in the
Electoral Commission is an implied denial of the exercise of that power by the National Assembly.
And this is as effective a restriction upon the legislative power as an express prohibition in the
Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B,
1). If we concede the power claimed in behalf of the National Assembly that said body may regulate
the proceedings of the Electoral Commission and cut off the power of the commission to lay down
the period within which protests should be filed, the grant of power to the commission would be
ineffective. The Electoral Commission in such case would be invested with the power to determine
contested cases involving the election, returns and qualifications of the members of the National
Assembly but subject at all times to the regulative power of the National Assembly. Not only would
the purpose of the framers of our Constitution of totally transferring this authority from the legislative
body be frustrated, but a dual authority would be created with the resultant inevitable clash of
powers from time to time. A sad spectacle would then be presented of the Electoral Commission
retaining the bare authority of taking cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever and whenever the National Assembly
has chosen to act, a situation worse than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the National Assembly in procedural matters will
inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that
this result should not be permitted.
We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the national
Assembly as a coordinate department of the government and of according validity to its acts, to
avoid what he characterized would be practically an unlimited power of the commission in the
admission of protests against members of the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance should be filed.
It is a settled rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also
conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be followed in filing protests before the
Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may
abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance
of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of
abuse is not argument against the concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National Assembly, the remedy is political, not

judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of
the government are not intended to be corrected by the judiciary. We believe, however, that the
people in creating the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and each constitutional organ working
within its own particular sphere of discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for which they were created by the
sovereign will. That the actuations of these constitutional agencies might leave much to be desired in
given instances, is inherent in the perfection of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it
does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of the
intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November
15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National Assembly convened on November 25th of that
year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by
that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was filed on December 9 of the same year. The pleadings do not show
when the Electoral Commission was formally organized but it does appear that on December 9,
1935, the Electoral Commission met for the first time and approved a resolution fixing said date as
the last day for the filing of election protest. When, therefore, the National Assembly passed its
resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly,
the Electoral Commission had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records on file in the archives
division of the National Assembly attached to the record of this case upon the petition of the
petitioner, the three justices of the Supreme Court the six members of the National Assembly
constituting the Electoral Commission were respectively designated only on December 4 and 6,
1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of
the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the
result would be that the National Assembly on the hypothesis that it still retained the incidental
power of regulation in such cases had already barred the presentation of protests before the
Electoral Commission had had time to organize itself and deliberate on the mode and method to be
followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and
could not have been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the election of members
against whom no protests had been filed at the time of its passage on December 3, 1935, can not be
construed as a limitation upon the time for the initiation of election contests. While there might have
been good reason for the legislative practice of confirmation of the election of members of the
legislature at the time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of
the authority incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the time for the
filing of said election protests. Confirmation by the National Assembly of the returns of its members
against whose election no protests have been filed is, to all legal purposes, unnecessary. As
contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion
of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of
the election of any member is not required by the Constitution before he can discharge his duties as
such member. As a matter of fact, certification by the proper provincial board of canvassers is

sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to
any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his seat.
The return of the proper election officers is sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted elections is
certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give
such directions for confirming or altering the return, or for the issue of a writ for a new election, or for
carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec.
13). In the United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the Philippine
Legislature fixed the time when protests against the election of any of its members should be filed.
This was expressly authorized by section 18 of the Jones Law making each house the sole judge of
the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the time and manner of filing contest
in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for
the filing of protests had already expired, each house passed a resolution confirming or approving
the returns of such members against whose election no protests had been filed within the prescribed
time. This was interpreted as cutting off the filing of further protests against the election of those
members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature,
Record First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature;
Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record First Period,
pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record First Period,
vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with
the power to determine all contest relating to the election, returns and qualifications of members of
the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of
that power. There was thus no law nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National Assembly could not do directly, it could
not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and duties
often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the agencies
thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional
mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases
and controversies, and is the power and duty to see that no one branch or agency of the
government transcends the Constitution, which is the source of all authority.
(e) That the Electoral Commission is an independent constitutional creation with specific
powers and functions to execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to the election,
returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns, and
qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously exercised by the
legislature with respect to contests relating to the elections, returns and qualifications of its
members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral Commission was full,
clear and complete, and carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election, returns and
qualifications of members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National Assembly were to retain the
power to prescribe rules and regulations regarding the manner of conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones
Law making each house of the Philippine Legislature respectively the sole judge of the
elections, returns and qualifications of its elective members, but also section 478 of Act No.
3387 empowering each house to prescribe by resolution the time and manner of filing
contests against the election of its members, the time and manner of notifying the adverse
party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is not
essential before such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.
(m) That confirmation by the National Assembly of the election of any member against whom
no protest had been filed prior to said confirmation, does not and cannot deprive the
Electoral Commission of its incidental power to prescribe the time within which protests
against the election of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent
Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of
the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests
against the elections, returns and qualifications of members of the National Assembly, nor prevent
the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil
Procedure.
The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs
against the petitioner. So ordered.
Avancea, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably expressed in the preceding opinion. I am,
however, constrained to withhold my assent to certain conclusions therein advanced.
The power vested in the Electoral Commission by the Constitution of judging of all contests relating
to the election, returns, and qualifications of the members of the National Assembly, is judicial in
nature. (Thomas vs.Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to
regulate the time in which notice of a contested election may be given, is legislative in character.
(M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law.
ed., 572.)
It has been correctly stated that the government established by the Constitution follows
fundamentally the theory of the separation of powers into legislative, executive, and judicial.
Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear
constitutional provision to the contrary, the power to regulate the time in which notice of a contested
election may be given, must be deemed to be included in the grant of legislative power to the
National Assembly.
The Constitution of the United States contains a provision similar to the that found in Article VI,
section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United
States provides that each house of the Congress shall be the judge of the elections, returns, and
qualifications of its own members. Notwithstanding this provision, the Congress has assumed the
power to regulate the time in which notice of a contested election may be given. Thus section 201,
Title 2, of the United States Code Annotated prescribes:
Whenever any person intends to contest an election of any Member of the House of
Representatives of the United States, he shall, within thirty days after the result of such
election shall have been determined by the officer or board of canvassers authorized by law
to determine the same, give notice, in writing, to the Member whose seat he designs to
contest, of his intention to contest the same, and, in such notice, shall specify particularly the
grounds upon which he relies in the contest. (R. S., par. 105.)
The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the
effect that the Senate and House of Representatives, respectively, shall be the sole judges of the

elections, returns, and qualifications of their elective members. Notwithstanding this provision, the
Philippine Legislature passed the Election Law, section 478 of which reads as follows:
The Senate and the House of Representatives shall by resolution respectively prescribe the
time and manner of filing contest in the election of members of said bodies, the time and
manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix
the costs and expenses of contest which may be paid from their respective funds.
The purpose sought to be attained by the creation of the Electoral Commission was not to erect a
body that would be above the law, but to raise legislative elections contests from the category of
political to that of justiciable questions. The purpose was not to place the commission beyond the
reach of the law, but to insure the determination of such contests with the due process of law.
Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article
XV, section 2, of which provides that
All laws of the Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless
inconsistent with this Constitution, until amended, altered, modified, or repealed by the
National Assembly, and all references in such laws to the Government or officials of the
Philippine Islands shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution.
The manifest purpose of this constitutional provision was to insure the orderly processes of
government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth
of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative
even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the
Constitution, and that all references in such laws to the government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to the government and corresponding
officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of
the Constitution to hold that section 478 of the Election Law remains operative and should now be
construed to refer to the Electoral Commission, which, in so far as the power to judge election
contests is concerned, corresponds to either the Senate or the House of Representative under the
former regime. It is important to observe in this connection that said section 478 of the Election Law
vested the power to regulate the time and manner in which notice of a contested election may be
given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In
other words, the authority to prescribe the time and manner of filing contests in the elections of
members of the Philippine Legislature was by statute lodged separately in the bodies clothed with
power to decide such contests. Construing section 478 of the Election Law to refer to the National
Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude
that the authority to prescribe the time and manner of filing contests in the election of members of
the National Assembly is vested in the Electoral Commission, which is now the body clothed with
power to decide such contests.
In the light of what has been said, the resolution of the National Assembly of December 3, 1935,
could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of
the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its
resolution of December 9, 1935, which fixed the time with in which written contests must be filed with
the commission.

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to
hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A.
Angara.

Republic of the Philippines


SUPREME COURT
Baguio City
EN BANC
A.M. No. P-08-2531
April 11, 2013
(Formerly A.M. No. 08-7-220-MTCC)
CIVIL SERVICE COMMISSION, Complainant,
vs.
MERLE RAMONEDA-PITA, Clerk III, Municipal Trial Court in Cities, Danao City. Respondent.
DECISION
PER CURIAM:
This administrative case arose from a letter1dated June 23, 2006 by Director David E. Cabanag, Jr.
of the Civil Service Commission (CSC) Regional Office No. VII calling the attention of the Office of
the Court Administrator (OCA) to the continued employment of Merle Ramoneda-Pita (RamonedaPita) as Clerk III of the Municipal Trial Court in Cities (MTCC), Danao City. It informed the OCA that
in CSC Resolution No. 0102632 dated January 26, 2001, Ramoneda-Pita was found guilty of
dishonesty and dismissed from the service. As accessory penalties, she was perpetually barred from
joining government service and her civil service eligibility was revoked. However, Ramoneda-Pita did
not declare her ineligibility when she stated in her Personnel Data Sheet (PDS) 3 dated June 14,
2005 that she had never been involved in any administrative case and that she was civil service
eligible.
The antecedent facts follow.
On March 23, 1998, an anonymous letter4 informed the CSC of an alleged irregularity in the civil
service eligibility of Ramoneda-Pita. The letter stated that the irregularity concerned RamonedaPitas taking of the Career Service Sub-Professional Examination held in Cebu City on July 26, 1987.
The CSC retrieved the records for the July 26, 1987 examinations and compared the pictures and
signatures of Ramoneda-Pita as they appeared in the Picture Seat Plan (PSP) for the exam and her
PDS dated October 17, 1990. As the pictures and signatures did not match, the CSC required
Ramoneda-Pita to explain why it seemed that another person took the civil service examination on
her behalf.
Ramoneda-Pita denied that someone else took the civil service examinations in her stead. She
averred that she took the civil service examinations on July 30, 1986 and not July 26, 1987. She
explained that there were dissimilarities in the pictures in the PSP and the PDS because these were
not taken on the same year and might have deteriorated in quality over the years. On the other

hand, she accounted for the difference in her signatures to her low educational attainment leading to
her non-development and non-maintenance of a usual signature.5
In its Investigation Report6 dated May 3, 1999, the CSC made the following observations and
recommendation:
The person who actually took the Career Service Subprofessional Examination on July 26, 1987 in
Cebu City, was the "Merle C. Ramoneda" whose picture and signature were affixed in the Admission
Slip/Notice of Admission and in the Picture Seat Plan, is NOT the "Merle C. Ramoneda" whose
picture and signature appear in the Personal Data Sheet dated October 17, 1990 of the real Merle C.
Ramoneda.
In view of the foregoing, considering that the evidence presented is substantial, it is recommended
that respondent Merle C. Ramoneda be adjudged guilty of the charges and meted the penalty of
dismissal with all its accessories.7
Thus, the CSC issued Resolution No. 010263 dated January 26, 2001 finding Ramoneda-Pita guilty
of dishonesty, the dispositive portion of which reads as follows:
WHEREFORE, the Commission hereby finds Merle C. Ramoneda guilty of the offense of
Dishonesty. Accordingly, the penalty of dismissal from the service with all its accessory penalties is
imposed.
Since the respondent is not in the government service, the penalty of dismissal is deemed
implemented. She is also perpetually barred from entering the government service and from taking
any civil service examination in the future. Her Civil Service Sub-Professional Eligibility is likewise
revoked.
Let a copy of this Resolution be furnished the Office of the Ombudsman-Visayas for whatever legal
action it may take under the premises.8
Ramoneda-Pita moved for reconsideration but the CSC denied it in Resolution No. 010880 9 dated
May 3, 2001.
Ramoneda-Pita appealed CSC Resolution Nos. 010263 and 010880 to the Court of Appeals and,
subsequently, to this Court. In both instances, her appeal was denied. 10
On January 14, 2005, Ramoneda-Pita wrote to then President Gloria Macapagal-Arroyo appealing
for clemency stating that she accepted her fate and turned a new leaf with a solemn commitment to
do good for the rest of her life. The Office of the President referred the matter to Director David
Cabanag, Jr. of the CSC Regional Office No. VII for validation, verification and investigation. 11
While the appeal for clemency was pending and in the course of the CSCs investigation, the CSC
discovered that, again, Ramoneda-Pita had been declaring in her PDS, particularly the PDS dated
June 14, 2005 submitted to the Supreme Court, that she had not been found guilty in any
administrative case and that she was civil service eligible.12
Thus, on May 11, 2006, the CSC, in its Investigation Report13 pursuant to the Office of the
Presidents referral, found that Ramoneda-Pita had not sufficiently established moral reformation
which is crucial in the grant of executive clemency. It recommended that the plea for executive
clemency be denied.

On June 23, 2006, Director Cabanag, Jr. wrote a letter to the OCA informing it of the continued
employment of Ramoneda-Pita as Clerk III of the MTCC, Danao City despite the finality of CSC
Resolution No. 010263.
On August 18, 2006, the OCA required Ramoneda-Pita to submit her comment within fifteen (15)
days.
In her Comment dated September 7, 2006, Ramoneda-Pita asserted that she never concealed that
she had been previously found guilty of dishonesty. She claimed that her immediate supervisor,
Judge Manuel D. Patalinghug, was furnished a copy of CSC Resolution No. 010263. She admitted
having filed request for executive clemency with the Office of the President. In connection to this,
she said that the CSC directed her to submit some documents needed for its processing. She
explained that she made the entries in her June 14, 2005 PDS because she wanted to be consistent
in her statements in her previous PDS and, considering her low education, she just copied the data
entries contained in her earlier PDS. She said that it was never her intention to falsify the PDS and
she did not understand the legal implications. She prayed for the Courts understanding and cited
her good record during her years of service.
In its Report14 dated July 4, 2008, the OCA recommended, among others, that the case be docketed
as a regular administrative matter and that this Court conduct its own investigation on the matter.
This Court noted and adopted the recommendation of the OCA in a Resolution15 dated August 6,
2008 where it directed the OCA to conduct its own investigation on the matter and submit a report
and recommendation thereon.
Thus, this administrative case.
In its Memorandum16 dated February 19, 2009, the OCA recommended Ramoneda-Pitas dismissal
from the service. It found that Ramoneda-Pita fully participated in the proceedings before the CSC
never once questioning its jurisdiction. It stated:
In the instant case, respondent Ramoneda-Pita, who never even questioned the jurisdiction of the
CSC, fully participated in the proceedings before the CSC. Although she was not yet a Supreme
Court employee when the CSC instituted the case against her, she had already become a member
of the judiciary when Resolution No. 01-0263 dated January 26, 2001 finding her guilty and meting
her the penalty of dismissal was issued - having been appointed by the Court to her present position
on July 24, 2000. Her motion for reconsideration of the CSC Resolution was denied. The respondent
then filed a petition for review before the Court of Appeals which affirmed the same Resolution. A
petition for review on certiorari under Rule 45 was filed with the Supreme Court which in its
Resolution dated August 24, 2004 found no reversible error in the challenged decision of the Court
of Appeals to warrant the exercise by the Court of its discretionary appellate jurisdiction in the case.
Taking into consideration the pronouncement in the Ampong case, we believe that with all the more
reason the doctrine of estoppel should thus be considered applicable in the instant case as the
respondent went all the way to the Supreme Court to question the CSC Resolution. In addition, the
Court itself has even ruled on the case, effectively upholding CSC Resolution No. 01-0263 when it
explicitly stated that in any event, the petition would still be denied for failure thereof to sufficiently
show that the public respondent committed any reversible error in the challenged decision as to
warrant the exercise by this Court of its discretionary appellate jurisdiction in this case.
xxxx

There lies the question as to how should respondent then be proceeded against with respect to her
employment in the Judiciary. We deem that we cannot just implement CSC Resolution No. 01-0263
and dismiss the respondent outright. The Court still maintains its administrative jurisdiction over the
respondent and should therefore have the final determination of her administrative liability.
Considering, however, that the CSC had already conducted both fact-finding and formal
investigations, we find no reason why the Court should replicate what the CSC had done more ably.17
In support of its conclusion, the OCA cited Ampong v. Civil Service Commission, CSC-Regional
Office No. 1118among others. Said the OCA:
The standard procedure is for the CSC to bring its complaint against a judicial employee before the
Supreme Court through the OCA as shown in several cases. The Court, however, has made
exceptions in certain cases. In the very recent case of Ampong, the Court, although it declared that it
had administrative jurisdiction over the petitioner, nevertheless upheld the ruling of the CSC based
on the principle of estoppel. In the said case, petitioner Ampong, a court interpreter at the time the
CSC instituted administrative proceedings against her, questioned the jurisdiction of the CSC after it
found her guilty of dishonesty in surreptitiously taking the CSC-supervised Professional Board
Examination for Teachers (PBET) in 1991 in place of another person and dismissed her from the
service. The Court denied the petition on the ground that the previous actions of petitioner estopped
her from attacking the jurisdiction of the CSC which had accorded her due process. 19 (Citations
omitted.)
The OCA then proceeded to discuss the merits of Ramoneda-Pitas contention. It noted RamonedaPitas claim that her physical appearance changed over the intervening years since she took the
Civil Service Sub-Professional Examinations. She also posed the possibility that the picture quality
had deteriorated over time. In addition, she also claims that the examiner must have interchanged
her picture with someone else as he was the one who pasted the pictures to the seat plan.
However, the OCA seriously doubted the validity of Ramoneda-Pitas claim saying:
We do not think that a mere three-year gap would bring about drastic changes in a persons
appearance. Besides, the respondent failed to substantiate her claims. She could have easily
submitted additional evidence, such as pictures to show the gradual change in her appearance
through the three-year period.20
On the confusion with respect to the pictures, the OCA said that it was not "likely due to the strict
procedure followed during civil service examinations x x x." 21 Moreover, the OCA stated:
The presentation of various explanations and conjectures show the inconsistent stands taken by the
respondent. She insists that the picture in the seat plan was her and that her physical appearance
has changed over the years, yet in the same breath argues that the examiner must have
interchanged her picture with the pictures of other examinees.
The same inconsistency is manifest in all her records. Upon the Courts resolution of her petition for
review on certiorari, the respondent states in her letter dated January 14, 2005 addressed to
President Arroyo that she fought hard to prove her innocence but had accepted her fate and
mistake, with the solemn commitment that she would never commit the same or similar mistake for
the rest of her life. x x x.
xxxx

The respondent has a string of dishonest acts which started when she had somebody impersonate
her in taking the Civil Service Subprofessional examination. Upon the discovery of her deception,
she embarked on a series of prevarications to cover it up, the most notable of which is the Personal
Data Sheet dated April 5, 2000 she submitted to the Court as one of the supporting documents for
her appointment to the judiciary. In the Personal Data Sheet, item no. 25 asks "Do you have any
pending administrative case?" while item no. 27 queries "Have you ever been convicted of any
administrative offense?" The respondent answered "no" to both questions. It must be remembered
that at the time she filled out the Personal Data Sheet, she already had a pending administrative
case, the CSC having already filed its formal charge on September 7, 1998. Her fraudulent answers
had been instrumental in the unquestioned approval of her appointment because had she answered
truthfully the Court would have been alerted to her pending administrative case with the CSC and
would have surely withheld, if not denied, her appointment.
Taking judicial notice of the fact-finding and formal investigations conducted by the CSC relative to
the impersonation case of the respondent and given the observations on her subsequent actuations
which were predisposed to deceive, we find that the respondent, is indeed, guilty of dishonesty and
falsification of document.22
The OCA thus recommended:
In view of the foregoing, we respectfully submit for the consideration of the Honorable Court the
recommendation that respondent Merle Ramoneda-Pita, Clerk III, Municipal Trial Court in Cities,
Danao City, be found GUILTY of Dishonesty and Falsification of Official Document and be
DISMISSED from the service with forfeiture of all her retirement benefits, except the value of her
accrued leaves, if any, and with prejudice to re-employment in the government or any of its
subdivisions, instrumentalities or agencies including government-owned or controlled corporations. 23
We note and adopt the recommendation of the OCA.
As a preliminary matter, we address the matter of propriety of the proceedings against RamonedaPita in the CSC.
We have always maintained that it is only the Supreme Court that can oversee the judges and court
personnels administrative compliance with all laws, rules and regulations. No other branch of
government may intrude into this power, without running afoul of the doctrine of separation of
powers.24 However, as aptly pointed out by the OCA, Ramoneda-Pita was afforded the full protection
of the law, that is, afforded due process. She was able to file several affidavits and pleadings before
the CSC with counsel. It may also be noted that the case had been elevated to the Court of Appeals
and this Court, where the Resolution of the CSC was upheld in both instances.
The OCAs reliance in Ampong v. Civil Service Commission is well taken. As we have stated in Civil
Service Commission v. Andal25:
In Ampong, petitioner in that case admitted her guilt. She voluntarily went to the CSC regional office,
admitted to the charges leveled against her and waived her right to the assistance of counsel. She
was given ample opportunity to present her side and adduce evidence in her defense before the
CSC. She filed her answer to the charges against her and even moved for a reconsideration of the
adverse ruling of the CSC. In short, Ampong did not question the authority of the CSC and, in fact,
actively participated in the proceedings before it.
In the present case, while respondent may have filed his Answer to the formal charge of dishonesty
after having been directed to do so, he denied having taken the civil service examination and did not

even appear at the formal investigation conducted by the CSC-NCR. He appealed to the CSC after
the adverse decision of the CSC-NCR was rendered but raised the issue of lack of jurisdiction over
his person. He argued that as an employee in the Judiciary, "the jurisdiction to hear disciplinary
action against him vests with the Sandiganbayan or the Supreme Court." It cannot therefore be said
that he was estopped from assailing the jurisdiction of the CSC.
This notwithstanding, we reiterate that we will not and cannot tolerate dishonesty for the judiciary
expects the highest standard of integrity from all its employees. The conduct and behavior of
everyone connected with an office charged with the dispensation of justice is circumscribed with a
heavy burden or responsibility. The Court will not hesitate to rid its ranks of undesirables. (Citations
omitted; emphases ours.)
In any event, the OCA had asked Ramoneda-Pita to comment on the matter. She was therefore
given due notice and fair hearing. It is noteworthy that she only rehashed the arguments that she
raised before the CSC proceedings.
We now proceed to the substantive aspect of the case.
This Court has defined dishonesty in Civil Service Commission v. Perocho, Jr.26 as:
Intentionally making a false statement in any material fact, or practicing or attempting to practice any
deception or fraud in securing his examination, registration, appointment or promotion. Thus,
dishonesty, like bad faith, is not simply bad judgment or negligence. Dishonesty is a question of
intention. In ascertaining the intention of a person accused of dishonesty, consideration must be
taken not only of the facts and circumstances which gave rise to the act committed by the
respondent, but also of his state of mind at the time the offense was committed, the time he might
have had at his disposal for the purpose of meditating on the consequences of his act, and the
degree of reasoning he could have had at that moment. (Citations omitted.)
We have previously dealt with cases with a marked resemblance to the present case.
In Civil Service Commission v. Sta. Ana,27 we found sufficient basis to dismiss a court stenographer
for misrepresenting herself to have passed the Career Service Professional Examination Computer
Assisted Test (CAT) when she had somebody else take the exam for her. The CSC undertook to
compare the respondents PDS with the CAT application and the Picture Seat Plan of the
examinations and found them to be different.
In Civil Service Commission v. Dasco,28 we found Ms. Caridad S. Dasco guilty of dishonesty and
consequently dismissed her from the service for having someone else take the requisite Civil
Service Examinations in her stead. It was found that her picture in the CSCs PSP had a marked
difference from her PDS.
In Office of the Court Administrator v. Bermejo,29 we dismissed Ms. Lourdes Bermejo for having
another person impersonate her at the Civil Service Examinations.
A careful review of the documents submitted before the CSC and a perusal of its investigation
reports in the present case, convince us that Ramoneda-Pita was not the one who took the Civil
Service Sub-Professional Examinations conducted on July 26, 1987. Specimen signatures in the
various PDS she had submitted over the years to the Court do not resemble the signature which
appeared in the seat plan of the CSC. Moreover, no substantive evidence was presented by
Ramoneda-Pita to bolster her defense that she was not able to develop a settled signature. Nor did

she substantiate her claim that the difference between the pictures in the PSP and the PDS is due to
the aging process.
This Court cannot stress enough that its employees should hold the highest standard of integrity for
they are a reflection of this esteemed institution which they serve. It certainly cannot countenance
any form of dishonesty perpetrated by its employees. As we have stated in the Code of Conduct for
Court Personnel30:
WHEREAS, court personnel, from the lowliest employee to the clerk of court or any position lower
than that of a judge or justice, are involved in the dispensation of justice, and parties seeking redress
from the courts for grievances look upon court personnel as part of the Judiciary.
WHEREAS, in performing their duties and responsibilities, court personnel serve as sentinels of
justice and any act of impropriety on their part immeasurably affects the honor and dignity of the
Judiciary and the peoples confidence in it. (Emphases supplied.)
In this case, Ramoneda-Pitas length of service in the judiciary is inconsequential. The CSCs
discovery of the perfidy in her acquisition of her civil service eligibility and her insistence in stating
that she is civil service eligible in her PDS when she had been already found guilty of an
administrative charge even after the finality of the CSC Resolution and even after her seeking
clemency tell this Court that Ramoneda-Pita has not and does not live up to the high standards
demanded of a court employee. As the Court has previously stated it will not hesitate to rid the ranks
of undesirables.31
WHEREFORE, Merle C. Ramoneda-Pita is hereby found GUILTY of dishonesty. She is DISMISSED
from the service with forfeiture of all her retirement benefits, except the value of her accrued leave
credits, if any, and with prejudice to re-employment in the government or any of its subdivisions,
instrumentalities or agencies including government-owned and controlled corporations. Let a copy of
this Decision be attached to her records with this Court.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

MARVIC MARIO VICTOR F. LEONEN


Associate Justice

Footnotes
1

Rollo, pp. 7-8.

Id. at 17-21. Entitled Re: Dishonesty. Signed by Commissioner Jose F. Erestain, Jr.,
Chairman Corazon Alma G. de Leon and Commissioner J. Waldemar V. Valmores and
attested by Director III Ariel G. Ronquillo.
2

Id. at 23-24.

Id. at 249.

Id. at 250.

Id. at 262-272; signed by Director IV Jesse J. Caberoy.

Id. at 272.

Id. at 21.

Id. at 122-124. Signed by Commissioner Jose F. Erestain, Jr., Chairman Karina


Constantino-David and Commissioner J. Waldemar V. Valmores.
9

Id. at 61-72; OCA Memorandum dated February 19. 2009, citing Court of Appeals Decision
dated December 29, 2003 and SC Resolutions dated July 27, 2004 and November 9, 2004
in G.R. No. 164200.
10

11

Id. at 64.

12

Id.

13

Id. at 476-479.

Id. at 1-5. Signed by Court Administrator Zenaida N. Elepao and Deputy Court
Administrator Antonio H. Dujua.
14

15

Id. at 57-58.

16

Id. at 61-72.

17

Id. at 66-67.

18

G.R. No. 167916, August 26, 2008, 563 SCRA 293.

19

Rollo, p. 66.

20

Id. at 69.

21

Id.

22

Id. at 70-71.

23

Id. at 72.

Civil Service Commission v. Andal, G.R. No. 185749, December 16, 2009, 608 SCRA 370,
377.
24

25

Id. at 378.

26

A.M. No. P-05-1985, July 26, 2007, 528 SCRA 171, 179.

27

450 Phil. 59 (2003).

28

A.M. No. P-07-2335, September 22, 2008, 566 SCRA 114.

29

A.M. No. P-05-2004, March 14, 2008, 548 SCRA 219.

30

A.M. No. 03-06-13-SC, June 1, 2004.

31

Civil Service Commission v. Andal, supra note 24.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 179267

June 25, 2013

JESUS C. GARCIA, Petitioner,


vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners." 3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or
any person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.

Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed. 9
Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered
to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications. 12
When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo. 14
Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,

mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in Paraaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from P5,000,000.00 to a more manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the
petitioners have left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household furniture, equipment
and other things in the conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24for the issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her

children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola. 27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another, acts
of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating
in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers,
her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will
be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00
for rental for the period from August 6 to September 6, 2006; and support in arrears from
March 2006 to August 2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by J
Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in
which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent
have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT Nos.
T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a
copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to any person, entity or

corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that
her signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation, 30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
and subject to such modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order 36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides

that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute, 45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46 The Constitution vests the power of
judicial review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of
any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where
such constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.51Finally, a third-party complaint is a claim
that a defending party may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. 52 As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence. 54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in one day,
to the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private

respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted
an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a time, 56 should
not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure" 62 an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 providing protection to "all family members, leaving no one in isolation" but at

the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter

how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband and
wife and their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.
xxxx

Senator Estrada. The amendment is accepted, Mr. President.


The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and

children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality." 70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".

Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's companions and supporters,
and take on subordinate roles in society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71
The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:
Traditions subordinating women have a long history rooted in patriarchy the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit
in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged
by our law... In person, the wife is entitled to the same protection of the law that the husband can
invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for women's right to vote, to own property,
and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.
Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of

the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women
and children show that
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73
Recently, the Philippine Commission on Women presented comparative statistics on violence
against women across an eight-year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its implementation in 2004, 74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
Reported
Cases

200
4

200
5

200
6

200
7

200
8

200
9

2010

2011

997

927

659

837

811

770

1,042

832

Incestuous
Rape

38

46

26

22

28

27

19

23

Attempted
Rape

194

148

185

147

204

167

268

201

Acts of
Lasciviousn
ess

580

536

382

358

445

485

745

625

Physical
Injuries

3,55
3

2,33
5

1,89
2

1,50
5

1,30
7

1,49
8

2,018

1,588

Rape

Sexual
Harassment

53

37

38

46

18

54

83

63

RA 9262

218

924

1,26
9

2,38
7

3,59
9

5,28
5

9,974

9,021

Threats

319

223

199

182

220

208

374

213

62

19

29

30

19

19

25

15

121

102

93

109

109

99

158

128

RA 9208

17

11

16

24

34

152

190

62

Abduction
/Kidnapping
29

16

34

23

28

18

25

22

Unjust
Vexation

90

50

59

59

83

703

183

155

6,27
1

5,37
4

4,88
1

5,72
9

6,90
5

9,48
5

15,10
4

12,94
8

Seduction
Concubinag
e

Total

*2011 report covers only from January to August


Source: Philippine National Police Women and Children Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89%
of all those who had experienced 4 or more incidents of domestic violence. 75 Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse
are in self-defense or the result of many years of physical or emotional abuse. 76
While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicledrawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its application is limited to
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but
similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason that, while there may be nonvehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" first at the hands of the offender and then of the
legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for

men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the development
of a distinct mindset on the part of the police, the prosecution and the judges." 85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as


a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any
legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women. 90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the

"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (GoTan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95
A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented," 99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests,103 among which is protection of women and children from violence and threats to their
personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.106
It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due
process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal home. 108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all
of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution." 109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows: 110
This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who
receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
1wphi1

act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.
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.112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and
to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers." 115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that
an imminent danger of violence against the woman and her children exists or is about to recur that
would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor
is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a
BPO.
We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with

full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.
We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

See separate concurring opinion:


TERESITA J. LEONARDO-DE CASTRO
Associate Justice

See: Concurring Opinion


ARTURO D. BRION
Associate Justice

On official leave
DIOSDADO M. PERALTA*
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

See Separate Concurring Opinion


ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

BIENVENIDO L. REYES
Associate Justice

See separate concurring opinion


MARVIC MARIO VICTOR F. LEONEN
Associate Justice
C E R TI F I C ATI O N

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
*

On official leave.

"Philippines still top Christian country in Asia, 5th in world," Philippine Daily Inquirer,
December 21, 2011.
1

Ephesians 5:25-28.

RATIONALE OF THE PROPOSED RULE ON VIOLENCE AGAINST WOMEN AND THEIR


CHILDREN, citing statistics furnished by the National Commission on the Role of Filipino
Women.
3

Id.

Section 3(a), R.A. 9262.

Rollo, pp. 63-83.

Id. at 66-67.

Id. at 64.

Id. at 67-68.

10

Id. at 68-70.

11

Id. at 70-71.

12

Id. at 72.

13

Id. at 73.

14

Id. at 74.

15

Id. at 65-66.

16

Id. at 66.

17

Id. at 70.

18

Id. at 84-87.

Urgent Ex-Parte Motion for Renewal of Temporary Protection Order (TPO) or Issuance of
Modified TPO. Id. at 90-93.
19

20

Id. at 94-97.

21

Id. at 98-103.

22

Id. at 138-140.

23

Order dated May 24, 2006. Id. at 148-149.

24

Id. at 154-166.

25

Id. at 156.

26

Id. at 157.

27

Id. at 158-159.

28

Id. at 167-174.

29

Id. at 182.

30

Id. at 183-184.

31

Id. at 185.

32

Id. at 186-187.

33

See Manifestation dated October 10, 2006. Id. at 188-189.

34

Id. at 104-137.

35

Id. at 151-152.

Decision dated January 24, 2007. Penned by Associate Justice Priscilla Baltazar-Padilla,
with Associate Justices Arsenio J. Magpale and Romeo F. Barza, concurring. Id. at 47-57.
36

37

Id. at 60-61.

38

Petition, id. at 22.

ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc., G.R. Nos.


175769-70, January 19, 2009, 576 SCRA 262, 289.
39

40

Philippine National Bank v. Palma, 503 Phil. 917, 932 (2005).

41

Petition, rollo, p. 24.

SEC. 5. Jurisdiction of Family Courts. - The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
42

xxxx
k) Cases of domestic violence against:
1) Women - which are acts of gender based violence that results, or are likely to
result in physical, sexual or psychological harm or suffering to women; and other
forms of physical abuse such as battering or threats and coercion which violate a
woman's personhood, integrity and freedom movement; and
2) Children - which include the commission of all forms of abuse, neglect, cruelty,
exploitation, violence, and discrimination and all other conditions prejudicial to their
development.
43

Sec. 17, R.A. 8369.

44

Manalo v. Mariano, 161 Phil. 108, 120 (1976).

Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008, 548
SCRA 485, 504.
45

46

Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140.

Planters Products, Inc. v. Fertiphil Corporation, supra note 45, at 505, citing Mirasol v. CA,
403 Phil. 760 (2001).
47

48

G.R. Nos. L-18128 & L-18672, December 26, 1961, 3 SCRA 696, 703-704.

RATIONALE OF THE PROPOSED RULES ON VIOLENCE AGAINST WOMEN AND


THEIR CHILDREN.
49

Korea Exchange Bank v. Hon. Rogelio C. Gonzales, 496 Phil. 127, 143-144 (2005);
Spouses Sapugay v. CA, 262 Phil. 506, 513 (1990).
50

51

Sec. 8, Rule 6, 1997 Rules of Civil Procedure.

52

Sec. 11, Rule 6, 1997 Rules of Civil Procedure.

See People of the Philippine Islands and Hongkong & Shanghai Banking Corporation v.
Vera, 65 Phil 199 (1937); Philippine Coconut Producers Federation, Inc. (COCOFED) v.
Republic, G.R. Nos. 177857-58, January 24, 2012, 663 SCRA 514, 594.
53

Recreation and Amusement Association of the Philippines v. City of Manila, 100 Phil 950,
956 (1957).
54

55

Secs. 22 and 31, A.M. No. 04-10-11-SC.

56

Sec. 26 (b), A.M. No. 04-10-11-SC.

57

Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 (1980).

27 L.Ed.2d 669 (1971), cited in The Executive Secretary v. Court of Appeals, 473 Phil. 27,
56-57 (2004).
58

59

Rollo, pp. 214-240, 237.

60

Petition, id. at 26-27.

An Act Defining Violence Against Women and Members of the Family, Prescribing
Penalties Therefor, Providing for Protective Measures for Victims and for Other Purposes.
61

62

Congressional Records, Vol. III, No. 45, December 10, 2003, p. 27.

63

Id. at 25.

64

Id. at 27.

65

Id. at 43-44.

66

Congressional Records, Vol. III, No. 51, January 14, 2004, pp. 141-147.

Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and
Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 391.
67

Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100,
113-114.
68

69

158 Phil. 60, 86-87 (1974).

70

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, p. 169.

Philippine Commission on Women, National Machinery for Gender Equality and Women's
Empowerment, "Violence Against Women (VAW)," <http://www.pcw.gov.ph> (visited
November 16, 2012).
71

<http://www.lawphil.net/international/treaties/dec_dec_1993.html> (visited November 16,


2012).
72

As reported by Senator Loi Estrada in her Sponsorship Speech, Congressional Records,


Vol. III, No. 45, December 10, 2003, p. 22.
73

Philippine Commission on Women, "Statistics on Violence Against Filipino Women,"


<http://pcw.gov.ph/statistics/201210/statistics-violence-against-filipino-women> (visited
October 12, 2012).
74

Women's Aid, "Who are the victims of domestic violence?," citing Walby and Allen, 2004,
<www.womensaid.org.uk/domestic-violence-articles.asp?
section=00010001002200410001&itemid= 1273 (visited November 16, 2012).
75

Toronto District School Board, Facts and Statistics <www.tdsb.on.ca/site/viewitem.asp?


siteid=15& menuid=23082&pageid=20007> (visited November 16, 2012).
76

77

People v. Solon, 110 Phil. 39, 41 (1960).

78

Victoriano v. Elizalde Rope Workers' Union, supra note 69, 90.

Biden, Jr., Joseph R., "The Civil Rights Remedy of the Violence Against Women Act: A
Defense," 37 Harvard Journal on Legislation 1 (Winter, 2000).
79

80

Congressional Records, Vol. III, No. 45, December 10, 2003, pp. 22-23.

81

Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 2011, 645 SCRA 1, 8.

"General recommendation No. 25, on article 4, paragraph 1, of the Convention on the


Elimination of All Forms of Discrimination against Women, on temporary special measures"
82

<www.un.org/womenwatch/.../recommendation> (visited January 4, 2013).


83

Petition, rollo, p. 27.

84

Article 5(a), CEDAW.

"The Rule on Violence Against Women and Their Children," Remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004 at the
Session Hall of the Supreme Court.
85

86

Supra note 49.

87

Article 15.

88

Article 16.

89

Supra note 49.

90

Supra note 49.

91

Estrada v. Sandiganbayan, 421 Phil 290, 351-352 (2001).

92

Petition, rollo, p. 35.

93

Estrada v. Sandiganbayan , supra note 91, at 352-353.

94

G.R. No. 168852, September 30, 2008, 567 SCRA 231.

95

Petition, rollo, p. 31.

96

Sec. 4 (o), A.M. No. 04-10-11-SC.

97

Supra note 49.

98

Sec. 7, A.M. No. 04-10-11-SC.

99

Supra note 49.

100

Id.

101

Supra note 85.

102

Cuartero v. CA, G.R. No. 102448, August 5, 1992, 212 SCRA 260, 265.

Laguna Lake Development Authority v. Court of Appeals, G.R. No. 110120, March 16,
1994, 231 SCRA 292, 307, citing Pollution Adjudication Board v. Court of Appeals, G.R. No.
93891, March 11, 1991, 195 SCRA 112.
103

104

Sec. 15, A.M. No. 04-10-11-SC.

105

Sec. 16, A.M. No. 04-10-11-SC.

106

Sec. 20, A.M. No. 04-10-11-SC.

107

Esperida v. Jurado, Jr., G.R. No. 172538, April 25, 2012, 671 SCRA 66, 74.

108

Petition, rollo, pp. 30-31.

109

Id. at 36.

110

Supra note 49.

111

Petition, rollo, pp. 130-131.

112

Sec. 1, Article VIII, 1987 Constitution.

113

Laurel v. Desierto, 430 Phil. 658 (2002).

People v. Tomaquin, 478 Phil. 885, 899 (2004), citing Section 389, Chapter 3, Title One,
Book III, Local Government Code of 1991, as amended.
114

115

Lovina and Montilla v. Moreno and Yonzon, 118 Phil 1401, 1406 (1963).

Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council, G.R. No. 171101,
July 5, 2011, 653 SCRA 154, 258.
116

117

Supra note 91.

118

Supra note 85.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 179987

September 3, 2013

HEIRS OF MARIO MALABANAN, (Represented by Sally A. Malabanan), Petitioners,


vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
RESOLUTION
BERSAMIN, J.:
For our consideration and resolution are the motions for reconsideration of the parties who both
assail the decision promulgated on April 29, 2009, whereby we upheld the ruling of the Court of
Appeals (CA) denying the application of the petitioners for the registration of a parcel of land situated
in Barangay Tibig, Silang, Cavite on the ground that they had not established by sufficient evidence
their right to the registration in accordance with either Section 14(1) or Section 14(2) of Presidential
Decree No. 1529 (Property Registration Decree).
Antecedents
The property subject of the application for registration is a parcel of land situated in Barangay Tibig,
Silang Cavite, more particularly identified as Lot 9864-A, Cad-452-D, with an area of 71,324-square
meters. On February 20, 1998, applicant Mario Malabanan, who had purchased the property from
Eduardo Velazco, filed an application for land registration covering the property in the Regional Trial
Court (RTC) in Tagaytay City, Cavite, claiming that the property formed part of the alienable and
disposable land of the public domain, and that he and his predecessors-in-interest had been in open,
continuous, uninterrupted, public and adverse possession and occupation of the land for more than
30 years, thereby entitling him to the judicial confirmation of his title.1
To prove that the property was an alienable and disposable land of the public domain, Malabanan
presented during trial a certification dated June 11, 2001 issued by the Community Environment and

Natural Resources Office (CENRO) of the Department of Environment and Natural Resources
(DENR), which reads:
This is to certify that the parcel of land designated as Lot No. 9864 Cad 452-D, Silang Cadastre as
surveyed for Mr. Virgilio Velasco located at Barangay Tibig, Silang, Cavite containing an area of
249,734 sq. meters as shown and described on the Plan Ap-04-00952 is verified to be within the
Alienable or Disposable land per Land Classification Map No. 3013 established under Project No.
20-A and approved as such under FAO 4-1656 on March 15, 1982.2
After trial, on December 3, 2002, the RTC rendered judgment granting Malabanans application for
land registration, disposing thusly:
WHEREFORE, this Court hereby approves this application for registration and thus places under the
operation of Act 141, Act 496 and/or P.D. 1529, otherwise known as Property Registration Law, the
lands described in Plan Csd-04-0173123-D, Lot 9864-A and containing an area of Seventy One
Thousand Three Hundred Twenty Four (71,324) Square Meters, as supported by its technical
description now forming part of the record of this case, in addition to other proofs adduced in the
name of MARIO MALABANAN, who is of legal age, Filipino, widower, and with residence at Munting
Ilog, Silang, Cavite.
Once this Decision becomes final and executory, the corresponding decree of registration shall
forthwith issue.
SO ORDERED.3
The Office of the Solicitor General (OSG) appealed the judgment to the CA, arguing that Malabanan
had failed to prove that the property belonged to the alienable and disposable land of the public
domain, and that the RTC erred in finding that he had been in possession of the property in the
manner and for the length of time required by law for confirmation of imperfect title.
On February 23, 2007, the CA promulgated its decision reversing the RTC and dismissing the
application for registration of Malabanan. Citing the ruling in Republic v. Herbieto (Herbieto), 4 the CA
declared that under Section 14(1) of the Property Registration Decree, any period of possession
prior to the classification of the land as alienable and disposable was inconsequential and should be
excluded from the computation of the period of possession. Noting that the CENRO-DENR
certification stated that the property had been declared alienable and disposable only on March 15,
1982, Velazcos possession prior to March 15, 1982 could not be tacked for purposes of computing
Malabanans period of possession.
Due to Malabanans intervening demise during the appeal in the CA, his heirs elevated the CAs
decision of February 23, 2007 to this Court through a petition for review on certiorari.
The petitioners assert that the ruling in Republic v. Court of Appeals and Corazon Naguit 5 (Naguit)
remains the controlling doctrine especially if the property involved is agricultural land. In this regard,
Naguit ruled that any possession of agricultural land prior to its declaration as alienable and
disposable could be counted in the reckoning of the period of possession to perfect title under the
Public Land Act (Commonwealth Act No. 141) and the Property Registration Decree. They point out
that the ruling in Herbieto, to the effect that the declaration of the land subject of the application for
registration as alienable and disposable should also date back to June 12, 1945 or earlier, was a
mere obiter dictum considering that the land registration proceedings therein were in fact found and
declared void ab initio for lack of publication of the notice of initial hearing.

The petitioners also rely on the ruling in Republic v. T.A.N. Properties, Inc. 6 to support their argument
that the property had been ipso jure converted into private property by reason of the open,
continuous, exclusive and notorious possession by their predecessors-in-interest of an alienable
land of the public domain for more than 30 years. According to them, what was essential was that
the property had been "converted" into private property through prescription at the time of the
application without regard to whether the property sought to be registered was previously classified
as agricultural land of the public domain.
As earlier stated, we denied the petition for review on certiorari because Malabanan failed to
establish by sufficient evidence possession and occupation of the property on his part and on the
part of his predecessors-in interest since June 12, 1945, or earlier.
Petitioners Motion for Reconsideration
In their motion for reconsideration, the petitioners submit that the mere classification of the land as
alienable or disposable should be deemed sufficient to convert it into patrimonial property of the
State. Relying on the rulings in Spouses De Ocampo v. Arlos,7 Menguito v. Republic8 and Republic v.
T.A.N. Properties, Inc.,9 they argue that the reclassification of the land as alienable or disposable
opened it to acquisitive prescription under the Civil Code; that Malabanan had purchased the
property from Eduardo Velazco believing in good faith that Velazco and his predecessors-in-interest
had been the real owners of the land with the right to validly transmit title and ownership thereof; that
consequently, the ten-year period prescribed by Article 1134 of the Civil Code, in relation to Section
14(2) of the Property Registration Decree, applied in their favor; and that when Malabanan filed the
application for registration on February 20, 1998, he had already been in possession of the land for
almost 16 years reckoned from 1982, the time when the land was declared alienable and disposable
by the State.
The Republics Motion for Partial Reconsideration
The Republic seeks the partial reconsideration in order to obtain a clarification with reference to the
application of the rulings in Naguit and Herbieto.
Chiefly citing the dissents, the Republic contends that the decision has enlarged, by implication, the
interpretation of Section 14(1) of the Property Registration Decree through judicial legislation. It
reiterates its view that an applicant is entitled to registration only when the land subject of the
application had been declared alienable and disposable since June 12, 1945 or earlier.
Ruling
We deny the motions for reconsideration.
In reviewing the assailed decision, we consider to be imperative to discuss the different
classifications of land in relation to the existing applicable land registration laws of the Philippines.
Classifications of land according to ownership
Land, which is an immovable property,10 may be classified as either of public dominion or of private
ownership.11Land is considered of public dominion if it either: (a) is intended for public use; or (b)
belongs to the State, without being for public use, and is intended for some public service or for the
development of the national wealth.12 Land belonging to the State that is not of such character, or
although of such character but no longer intended for public use or for public service forms part of

the patrimonial property of the State.13 Land that is other than part of the patrimonial property of the
State, provinces, cities and municipalities is of private ownership if it belongs to a private individual.
Pursuant to the Regalian Doctrine (Jura Regalia), a legal concept first introduced into the country
from the West by Spain through the Laws of the Indies and the Royal Cedulas, 14 all lands of the
public domain belong to the State.15 This means that the State is the source of any asserted right to
ownership of land, and is charged with the conservation of such patrimony.16
All lands not appearing to be clearly under private ownership are presumed to belong to the State.
Also, public lands remain part of the inalienable land of the public domain unless the State is shown
to have reclassified or alienated them to private persons.17

Classifications of public lands


according to alienability
Whether or not land of the public domain is alienable and disposable primarily rests on the
classification of public lands made under the Constitution. Under the 1935 Constitution, 18 lands of the
public domain were classified into three, namely, agricultural, timber and mineral. 19 Section 10, Article
XIV of the 1973 Constitution classified lands of the public domain into seven, specifically,
agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest, and grazing
land, with the reservation that the law might provide other classifications. The 1987 Constitution
adopted the classification under the 1935 Constitution into agricultural, forest or timber, and mineral,
but added national parks.20 Agricultural lands may be further classified by law according to the uses
to which they may be devoted.21 The identification of lands according to their legal classification is
done exclusively by and through a positive act of the Executive Department. 22
Based on the foregoing, the Constitution places a limit on the type of public land that may be
alienated. Under Section 2, Article XII of the 1987 Constitution, only agricultural lands of the public
domain may be alienated; all other natural resources may not be.
Alienable and disposable lands of the State fall into two categories, to wit: (a) patrimonial lands of
the State, or those classified as lands of private ownership under Article 425 of the Civil
Code,23 without limitation; and (b) lands of the public domain, or the public lands as provided by the
Constitution, but with the limitation that the lands must only be agricultural. Consequently, lands
classified as forest or timber, mineral, or national parks are not susceptible of alienation or
disposition unless they are reclassified as agricultural. 24 A positive act of the Government is
necessary to enable such reclassification,25 and the exclusive prerogative to classify public lands
under existing laws is vested in the Executive Department, not in the courts. 26 If, however, public land
will be classified as neither agricultural, forest or timber, mineral or national park, or when public land
is no longer intended for public service or for the development of the national wealth, thereby
effectively removing the land from the ambit of public dominion, a declaration of such conversion
must be made in the form of a law duly enacted by Congress or by a Presidential proclamation in
cases where the President is duly authorized by law to that effect. 27 Thus, until the Executive
Department exercises its prerogative to classify or reclassify lands, or until Congress or the
President declares that the State no longer intends the land to be used for public service or for the
development of national wealth, the Regalian Doctrine is applicable.
Disposition of alienable public lands
Section 11 of the Public Land Act (CA No. 141) provides the manner by which alienable and
disposable lands of the public domain, i.e., agricultural lands, can be disposed of, to wit:

Section 11. Public lands suitable for agricultural purposes can be disposed of only as follows, and
not otherwise:
(1) For homestead settlement;
(2) By sale;
(3) By lease; and
(4) By confirmation of imperfect or incomplete titles;
(a) By judicial legalization; or
(b) By administrative legalization (free patent).
The core of the controversy herein lies in the proper interpretation of Section 11(4), in relation to
Section 48(b) of the Public Land Act, which expressly requires possession by a Filipino citizen of the
land since June 12, 1945, or earlier, viz:
Section 48. The following-described citizens of the Philippines, occupying lands of the public domain
or claiming to own any such lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title thereafter, under the Land
Registration Act, to wit:
xxxx
(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of alienable and disposable lands
of the public domain, under a bona fide claim of acquisition of ownership, since June 12, 1945, or
earlier, immediately preceding the filing of the applications for confirmation of title, except when
prevented by war or force majeure. These shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be entitled to a certificate of title under the
provisions of this chapter. (Bold emphasis supplied)
Note that Section 48(b) of the Public Land Act used the words "lands of the public domain" or
"alienable and disposable lands of the public domain" to clearly signify that lands otherwise
classified, i.e., mineral, forest or timber, or national parks, and lands of patrimonial or private
ownership, are outside the coverage of the Public Land Act. What the law does not include, it
excludes. The use of the descriptive phrase "alienable and disposable" further limits the coverage of
Section 48(b) to only the agricultural lands of the public domain as set forth in Article XII, Section 2 of
the 1987 Constitution. Bearing in mind such limitations under the Public Land Act, the applicant must
satisfy the following requirements in order for his application to come under Section 14(1) of the
Property Registration Decree,28 to wit:
1. The applicant, by himself or through his predecessor-in-interest, has been in possession
and occupation of the property subject of the application;
2. The possession and occupation must be open, continuous, exclusive, and notorious;

3. The possession and occupation must be under a bona fide claim of acquisition of
ownership;
4. The possession and occupation must have taken place since June 12, 1945, or earlier;
and
5. The property subject of the application must be an agricultural land of the public domain.
Taking into consideration that the Executive Department is vested with the authority to classify lands
of the public domain, Section 48(b) of the Public Land Act, in relation to Section 14(1) of the Property
Registration Decree, presupposes that the land subject of the application for registration must have
been already classified as agricultural land of the public domain in order for the provision to apply.
Thus, absent proof that the land is already classified as agricultural land of the public domain, the
Regalian Doctrine applies, and overcomes the presumption that the land is alienable and disposable
as laid down in Section 48(b) of the Public Land Act. However, emphasis is placed on the
requirement that the classification required by Section 48(b) of the Public Land Act is classification or
reclassification of a public land as agricultural.
The dissent stresses that the classification or reclassification of the land as alienable and disposable
agricultural land should likewise have been made on June 12, 1945 or earlier, because any
possession of the land prior to such classification or reclassification produced no legal effects. It
observes that the fixed date of June 12, 1945 could not be minimized or glossed over by mere
judicial interpretation or by judicial social policy concerns, and insisted that the full legislative intent
be respected.
We find, however, that the choice of June 12, 1945 as the reckoning point of the requisite
possession and occupation was the sole prerogative of Congress, the determination of which should
best be left to the wisdom of the lawmakers. Except that said date qualified the period of possession
and occupation, no other legislative intent appears to be associated with the fixing of the date of
June 12, 1945. Accordingly, the Court should interpret only the plain and literal meaning of the law
as written by the legislators.
Moreover, an examination of Section 48(b) of the Public Land Act indicates that Congress prescribed
no requirement that the land subject of the registration should have been classified as agricultural
since June 12, 1945, or earlier. As such, the applicants imperfect or incomplete title is derived only
from possession and occupation since June 12, 1945, or earlier. This means that the character of
the property subject of the application as alienable and disposable agricultural land of the public
domain determines its eligibility for land registration, not the ownership or title over it.
Alienable public land held by a possessor, either personally or through his predecessors-in-interest,
openly, continuously and exclusively during the prescribed statutory period is converted to private
property by the mere lapse or completion of the period. 29 In fact, by virtue of this doctrine,
corporations may now acquire lands of the public domain for as long as the lands were already
converted to private ownership, by operation of law, as a result of satisfying the requisite period of
possession prescribed by the Public Land Act.30 It is for this reason that the property subject of the
application of Malabanan need not be classified as alienable and disposable agricultural land of the
public domain for the entire duration of the requisite period of possession.
To be clear, then, the requirement that the land should have been classified as alienable and
disposable agricultural land at the time of the application for registration is necessary only to dispute
the presumption that the land is inalienable.

The declaration that land is alienable and disposable also serves to determine the point at which
prescription may run against the State. The imperfect or incomplete title being confirmed under
Section 48(b) of the Public Land Act is title that is acquired by reason of the applicants possession
and occupation of the alienable and disposable agricultural land of the public domain. Where all the
necessary requirements for a grant by the Government are complied with through actual physical,
open, continuous, exclusive and public possession of an alienable and disposable land of the public
domain, the possessor is deemed to have acquired by operation of law not only a right to a grant,
but a grant by the Government, because it is not necessary that a certificate of title be issued in
order that such a grant be sanctioned by the courts.31
If one follows the dissent, the clear objective of the Public Land Act to adjudicate and quiet titles to
unregistered lands in favor of qualified Filipino citizens by reason of their occupation and cultivation
thereof for the number of years prescribed by law32 will be defeated. Indeed, we should always bear
in mind that such objective still prevails, as a fairly recent legislative development bears out, when
Congress enacted legislation (Republic Act No. 10023) 33 in order to liberalize stringent requirements
and procedures in the adjudication of alienable public land to qualified applicants, particularly
residential lands, subject to area limitations.34
On the other hand, if a public land is classified as no longer intended for public use or for the
development of national wealth by declaration of Congress or the President, thereby converting such
land into patrimonial or private land of the State, the applicable provision concerning disposition and
registration is no longer Section 48(b) of the Public Land Act but the Civil Code, in conjunction with
Section 14(2) of the Property Registration Decree. 35 As such, prescription can now run against the
State.
To sum up, we now observe the following rules relative to the disposition of public land or lands of
the public domain, namely:
(1) As a general rule and pursuant to the Regalian Doctrine, all lands of the public domain
belong to the State and are inalienable. Lands that are not clearly under private ownership
are also presumed to belong to the State and, therefore, may not be alienated or disposed;
(2) The following are excepted from the general rule, to wit:
(a) Agricultural lands of the public domain are rendered alienable and disposable
through any of the exclusive modes enumerated under Section 11 of the Public Land
Act. If the mode is judicial confirmation of imperfect title under Section 48(b) of the
Public Land Act, the agricultural land subject of the application needs only to be
classified as alienable and disposable as of the time of the application, provided the
applicants possession and occupation of the land dated back to June 12, 1945, or
earlier. Thereby, a conclusive presumption that the applicant has performed all the
conditions essential to a government grant arises,36 and the applicant becomes the
owner of the land by virtue of an imperfect or incomplete title. By legal fiction, the
land has already ceased to be part of the public domain and has become private
property.37
(b) Lands of the public domain subsequently classified or declared as no longer
intended for public use or for the development of national wealth are removed from
the sphere of public dominion and are considered converted into patrimonial lands or
lands of private ownership that may be alienated or disposed through any of the
modes of acquiring ownership under the Civil Code. If the mode of acquisition is
prescription, whether ordinary or extraordinary, proof that the land has been already

converted to private ownership prior to the requisite acquisitive prescriptive period is


a condition sine qua non in observance of the law (Article 1113, Civil Code) that
property of the State not patrimonial in character shall not be the object of
prescription.
To reiterate, then, the petitioners failed to present sufficient evidence to establish that they and their
predecessors-in-interest had been in possession of the land since June 12, 1945. Without satisfying
the requisite character and period of possession - possession and occupation that is open,
continuous, exclusive, and notorious since June 12, 1945, or earlier - the land cannot be considered
ipso jure converted to private property even upon the subsequent declaration of it as alienable and
disposable. Prescription never began to run against the State, such that the land has remained
ineligible for registration under Section 14(1) of the Property Registration Decree. Likewise, the land
continues to be ineligible for land registration under Section 14(2) of the Property Registration
Decree unless Congress enacts a law or the President issues a proclamation declaring the land as
no longer intended for public service or for the development of the national wealth.
1wphi1

WHEREFORE, the Court DENIES the petitioners' Motion for Reconsideration and the respondent's
Partial Motion for Reconsideration for their lack of merit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

I submitted my vote joining the Separate


Opinion of Justice Brion
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

In the Result: See Separate Opinion


ARTURO D. BRION
Associate Justice

DIOSDADO M. PERLATA
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

See separate concurring and dissenting opinion


MARVIC MARIO VICTOR F. LEONEN
Associate Justice
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1

Rollo, pp. 16-17.

Id. at 37-38.

Id. at 87.

G.R. No. 156117, May 26, 2005, 459 SCRA 183.

G.R. No. 144057, January 17, 2005, 448 SCRA 442.

G.R. No. 154953, June 26, 2008, 555 SCRA 477.

G.R. No. 135527, October 19, 2000, 343 SCRA 716.

G.R. No. 134308, December 14, 2000, 348 SCRA 128.

Supra note 6.

10

Article 415(1), Civil Code.

11

Article 419, Civil Code.

12

Article 420, Civil Code.

13

Article 421, Civil Code.

Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, December 6,
2000, 347 SCRA 128, 165.
14

15

Section 2, Art. XII, 1987 Constitution.

Republic v. Intermediate Appellate Court, No. L-71285, November 5, 1987, 155 SCRA 412,
419.
16

17

Republic v. Lao, G.R. No. 150413, July 1, 2003, 405 SCRA 291, 298.

18

1935 Constitution, Art. XIII, Sec. 1.

Krivenko v. Register of Deeds of Manila, 79 Phil. 461, 468 (1947). 20 Section 3 of Article
XII, 1987 Constitution states:
19

Section 3. Lands of the public domain are classified into agricultural, forest or timber,
mineral lands, and national parks. Agricultural lands of the public domain may be
further classified by law according to the uses which they may be devoted. Alienable
lands of the public domain shall be limited to agricultural lands. Private corporations
or associations may not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, renewable for not more than
twenty-five years, and not to exceed one thousand hectares in area.
Citizens of the Philippines may lease not more than five hundred hectares, or acquire
not more than twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development,
and subject to the requirements of agrarian reform, the Congress shall determine, by
law, the size of lands of the public domain which may be acquired, developed, held,
or leased and the conditions therefor. 21 Id.
22

See Bernas, The 1987 Constitution, 2009 Ed., pp. 1188-1189.

Article 425. Property of private ownership, besides the patrimonial property of the State,
provinces, cities, and municipalities, consists of all property belonging to private persons,
either individually or collectively. (345a)
23

Director of Forestry v. Villareal, G.R. No. 32266, February 27, 1989, 170 SCRA 598, 608609.
24

Heirs of Jose Amunategui v. Director of Forestry, No. L-27873, November 29, 1983, 126
SCRA 69, 75.
25

26

Director of Lands v. Court of Appeals, No. L-58867, June 22, 1984, 129 SCRA 689, 692.

27

Republic v. Court of Appeals, G.R. No. 127060, November 19, 2002, 392 SCRA 190, 201.

Section 14. Who may apply. The following persons may file in the proper Court of First
Instance an application for registration of title to land, whether personally or through their
duly authorized representatives:
28

(1) Those who by themselves or through their predecessors-in-interest have been in


open, continuous, exclusive and notorious possession and occupation of alienable
and disposable lands of the public domain under a bona fide claim of ownership
since June 12, 1945, or earlier.
xxxx

Director of Lands v. Intermediate Appellate Court, No. L-73002, December 29, 1986, 146
SCRA 509, 518. See also the dissenting opinion of Justice Teehankee in Manila Electric
Company v. Judge Castro-Bartolome, No. L-49623, June 29, 1982, 114 SCRA 799, 813.
29

Director of Lands v. Intermediate Appellate Court, No. L-73002, December 29, 1986, 146
SCRA 509, 521.
30

Susi v. Razon and Director of Lands, 48 Phil. 424, 428 (1925); Santos v. Court of Appeals,
G.R. No. 90380, September 13, 1990, 189 SCRA 550, 560; Cruz v. Navarro, No. L-27644,
November 29, 1973, 54 SCRA 109, 115.
31

x x x WHEREAS, it has always been the policy of the State to hasten the settlement,
adjudication and quieting of titles to unregistered lands including alienable and disposable
lands of the public domain in favor of qualified Filipino citizens who have acquired inchoate,
imperfect and incomplete titles thereto by reason of their open, continuous, exclusive and
notorious occupation and cultivation thereof under bonafide claim of acquisition of ownership
for a number of years prescribed by law; x x x (Presidential Decree 1073)
32

An Act Authorizing the Issuance of Free Patents to Residential Lands (Approved on March
9, 2010).
33

Republic Act No. 10023 reduces the period of eligibility for titling from 30 years to 10 years
of untitled public alienable and disposable lands which have been zoned as residential; and
enables the applicant to apply with the Community Environment and Natural Resources
Office of the Department of Environment and Natural Resources having jurisdiction over the
parcel subject of the application, provided the land subject of the application should not
exceed 200 square meters if it is in a highly urbanized city, 500 meters in other cities, 750
meters in first-class and second-class municipalities, and 1,000 meters in third-class
municipalities.
34

Section 14. Who may apply. The following persons may file in the proper Court of First
Instance an application for registration of title to land, whether personally or through their
duly authorized representatives:
35

xxxx
(2) Those who have acquired ownership of private lands by prescription under the
provisions of existing laws.
Republic v. Intermediate Appellate Court, No. L-75042, November 29, 1988, 168 SCRA
165, 174.
36

Dissenting opinion of Justice Teehankee in Manila Electric Company v. Castro-Bartolome,


supra,
37

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 164763

February 12, 2008

ZENON R. PEREZ, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents.
DECISION
REYES, R.T., J.:
PETITIONER Zenon R. Perez seeks a review1 of his conviction by the Sandiganbayan2 for
malversation of public funds3 under Article 217 of the Revised Penal Code.
This is not a big case but its implications are wide-ranging and the issues We resolve include the
rights to speedy trial and speedy disposition of a criminal case, the balancing test, due process, and
cruel and unusual punishment.
The Facts
On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial Auditors
Office, Bohol,4conducted a cash examination on the account of petitioner, who was then the acting
municipal treasurer of Tubigon, Bohol.
Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio
message was sent to Loon, the town where he resided, to apprise him of the on-going audit. The
following day, the audit team counted the cash contained in the safe of petitioner in his presence. In
the course of the audit, the amount ofP21,331.79 was found in the safe of petitioner.

The audit team embodied their findings in the Report of Cash Examination, 5 which also contained an
inventory of cash items. Based on the said audit, petitioner was supposed to have on hand the total
amount of P94,116.36, instead of the P21,331.79, incurring a shortage of P72,784.57.6
The report also contained the Cash Production Notice7 dated January 4, 1989, where petitioner was
informed and required to produce the amount of P72,784.57, and the cash count sheet signed and
acknowledged by petitioner indicating the correctness of the amount of P21,331.79 found in his safe
and counted in his presence. A separate demand letter8 dated January 4, 1989 requiring the
production of the missing funds was sent and received by petitioner on January 5, 1989.
When asked by the auditing team as to the location of the missing funds, petitioner verbally
explained that part of the money was used to pay for the loan of his late brother, another portion was
spent for the food of his family, and the rest for his medicine. 9
As a result of the audit, Arlene R. Mandin prepared a memorandum 10 dated January 13, 1989
addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal case
against petitioner.
On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the
amounts ofP10,000.00 and P15,000.00, respectively. On February 14, 1989, petitioner again
remitted to the Provincial Treasurer an additional amount of P35,000.00, followed by remittances
made on February 16, 1989 in the amounts of P2,000.00 and P2,784.00.
An administrative case was filed against petitioner on February 13, 1989. He filed an Answer 11 dated
February 22, 1989 reiterating his earlier verbal admission before the audit team.
On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer of
Bohol. Petitioner had then fully restituted his shortage in the amount of P72,784.57. The full
restitution of the missing money was confirmed and shown by the following receipts: 12

Official Receipt
No.

Date Issued and


Received

Amount

8266659

January 16, 1989

P10,000.00

8266660

January 16, 1989

P15,000.00

8266662

February 14, 1989

P35,000.00

8266667

February 16, 1989

P 2,000.00

8266668

February 16, 1989

P 2,784.00

8266675

April 17, 1989

P 8,000.00

TOTAL - P72,784.57

Later, petitioner was charged before the Sandiganbayan with malversation of public funds, defined
and penalized by Article 217 of the Revised Penal Code in an Information that read:
That on or about the period covering from December 28, 1988 to January 5, 1989, and for
sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused Zenon R. Perez, a
public officer being then Acting Municipal Treasury of the said Municipality, by reason of the
duties of his official position was accountable for the public funds collected and received by
him, with grave abuse of confidence did then and there willfully, unlawfully and feloniously
misappropriate, misapply, embezzle and take away from the said funds the total amount of
SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and 57/100
(P72,784.57), which said fund was appropriated and converted by the said accused to his
own personal use and benefit to the damage and prejudice of the government in the
aforementioned amount.
CONTRARY TO LAW.13 (Underscoring supplied)
On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of "not guilty."14
Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for postponement. The
Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled,
due to the presence of prosecution witness Arlene R. Mandin, who came all the way from Bohol.
On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its
witness. Arlene R. Mandin testified as narrated above.
The defense presented evidence through petitioner Zenon R. Perez himself. He denied the contents
of his first Answer15 to the administrative case filed against him by the audit team. He claimed it was
prepared without the assistance of counsel and that at the time of its preparation and submission, he
was not in peak mental and physical condition, having been stricken with diabetes mellitus. 16
He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March 2,
1989.17 In the latter, he vehemently denied that he incurred a cash shortage P72,784.57.
According to petitioner, the alleged shortage was in the possession and custody of his accountable
personnel at the time of the audit examination. Several amounts totalling P64,784.00 were remitted
to him on separate dates by his accountable officer, starting January 16, 1989 to February 16, 1989.
The same were turned over by him to the Office of the Provincial Treasurer, leaving an unremitted
sum of P8,000.00 as of February 16, 1989.18 He remitted the P8,000.00 on April 17, 1989 to the
Provincial Treasurer of Bohol, fully restoring the cash shortage.

Petitioner further testified that on July 30, 1989, he submitted his Position Paper 19 before the Office
of the Ombudsman, Cebu City and maintained that the alleged cash shortage was only due to
oversight. Petitioner argued that the government did not suffer any damage or prejudice since the
alleged cash shortage was actually deposited with the Office of the Provincial Treasurer as
evidenced by official receipts.20
Petitioner completed his testimony on September 20, 1990. He rested his case on October 20,
1990.21
Sandiganbayan Disposition
On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a fallo reading:
WHEREFORE, judgment is hereby rendered finding the accused ZENON R.
PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds as
defined in and penalized by Article 217 of the Revised Penal Code and, there being one
mitigating circumstance without any aggravating circumstance to offset the same, is hereby
sentenced to suffer an indeterminate penalty of from TEN (10) YEARS and ONE (1) DAY
of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS
of reclusion temporal as the maximum and to suffer perpetual special disqualification. The
accused Zenon R. Perez is likewise ordered to pay a FINE equal to the total amount of the
funds malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos and
Fifty-Seven Centavos (P72, 784.57).
SO ORDERED.22 (Emphasis in the original)
On January 13, 2004, petitioner filed a motion for reconsideration 23 which the prosecution opposed
on January 28, 2004.24 Petitioner replied25 to the opposition. On August 6, 2004, petitioners motion
was denied with finality.
On September 23, 2004, petitioner resorted to the instant appeal26 raising the following issues, to wit:
I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE
DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE
PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE PROCESS.
II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE
IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL OF
RIGHTS) OF THE CONSTITUTION.27 (Underscoring supplied)
Our Ruling
Before addressing petitioners twin assignment of errors, We first tackle the propriety of petitioners
conviction for malversation of public funds.
I. Petitioner was correctly convicted of malversation.
Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts
punished as malversation are: (1) appropriating public funds or property, (2) taking or
misappropriating the same, (3)consenting, or through abandonment or negligence, permitting any

other person to take such public funds or property, and (4) being otherwise guilty of the
misappropriation or malversation of such funds or property.28
There are four elements that must concur in order that one may be found guilty of the crime. They
are:
(a) That the offender be a public officer;
(b) That he had the custody or control of funds or property by reason of the duties of his
office;
(c) That those funds or property involved were public funds or property for which he is
accountable; and
(d) That he has appropriated, took or misappropriated or consented or, through
abandonment or negligence, permitted another person to take them. 29
Evidently, the first three elements are present in the case at bar. At the time of the commission of the
crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon,
Bohol. By reason of his public office, he was accountable for the public funds under his custody or
control.
The question then is whether or not petitioner has appropriated, took or misappropriated, or
consented or through abandonment or negligence, permitted another person to take such funds.
We rule in the affirmative.
In malversation, all that is necessary to prove is that the defendant received in his possession public
funds; that he could not account for them and did not have them in his possession; and that he could
not give a reasonable excuse for its disappearance. An accountable public officer may be convicted
of malversation even if there is no direct evidence of misappropriation and the only evidence is
shortage in his accounts which he has not been able to explain satisfactorily.30
Verily, an accountable public officer may be found guilty of malversation even if there is no direct
evidence of malversation because the law establishes a presumption that mere failure of an
accountable officer to produce public funds which have come into his hands on demand by an officer
duly authorized to examine his accounts is prima facie case of conversion.31
Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the
accused to adequately explain the location of the funds or property under his custody or control in
order to rebut the presumption that he has appropriated or misappropriated for himself the missing
funds. Failing to do so, the accused may be convicted under the said provision.
However, the presumption is merely prima facie and a rebuttable one. The accountable officer may
overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he
has not put said funds or property to personal use, then that presumption is at end and the prima
facie case is destroyed.32
In the case at bar, petitioner was not able to present any credible evidence to rebut the presumption
that he malversed the missing funds in his custody or control. What is extant in the records is that

the prosecution, through witness Arlene R. Mandin, was able to prove that petitioner malversed the
funds under his custody and control. As testified by Mandin:
Atty. Caballero:
Q: Was Mr. Zenon Perez actually and physically present during the time of your cash
examination?
Witness:
A.

Yes, Sir.

Q:

From December 28, to January 5, 1989?

A:

He was present on December 28, 1988 and January 4 and 5, 1989, Sir.

Q: Did he not make any verbal explanation as the reason why he was short of
about P72,000.00, after you conducted the cash count on January 5, 1989?
A:

Yes, Sir, he did.

Q:

What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother and
the other portion was spent for food of his family; and the rest for his
medicine.33 (Emphasis supplied)
Petitioner gave himself away with his first Answer filed at the Office of the Provincial Treasurer of
Bohol in the administrative case filed against him.
In that Answer, petitioner narrated how he disposed of the missing funds under his custody and
control, to wit: (1) about P30,000.00 was used to pay the commercial loan of his late brother; (2) he
spent P10,000.00 for the treatment of his toxic goiter; and (3) about P32,000.00 was spent for food
and clothing of his family, and the education of his children. He there stated:
1. That the circumstances surrounding the cash shortage in the total amount of P72,784.57
during the examination of the respondents cash accounts by the Commission on Audit on
December 28-29, 1988 and January 4-5, 1989 are as follows, to wit:
(a) That respondent paid the amount of about P30,000.00 to the Philippine
National Bank, Tagbilaran Branch as interests of the commercial loan of his
late brother Carino R. Perezusing respondents house and lot as collateral thereof.
If the interests would not be paid, the loan would be foreclosed to respondents great
prejudice and disadvantage considering that he and his family are residing in said
house used as collateral;
(b) That respondent spent the amount of P10,000.00 in connection with the
treatment of his toxic goiter;

(c) That the rest of the amount amounting to about P32,000.00 was spent by
him for his familys foods, clothings (sic), and education of his
children because his monthly salary is not enough for the needs of his family.34
By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the fourth
element of the crime of malversation was duly established. His conviction thus stands in terra firma.
True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial
Treasurer of Bohol, substantially changing the contents of his earlier answer of February 22, 1989.
His second Answer averred:
3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were still
in the possession and custody of his accountable personnel at the time of the examination
held by the auditor of the Commission on Audit;
4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were
already remitted to him by his accountable personnel after January 5, 1989, and only the
remaining amount of P8,000.00 remains to be remitted to him by his accountable
personnel.35
The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed his
story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak.
It is contended that petitioners first Answer of February 22, 1989 should not have been given
probative weight because it was executed without the assistance of counsel. 36
There is no law, jurisprudence or rule which mandates that an employee should be assisted by
counsel in an administrative case. On the contrary, jurisprudence is in unison in saying
that assistance of counsel is not indispensable in administrative proceedings.
Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat may
tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya ay
iisa ang sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-kailangan sa
kasong administratibo.
The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of
counsel, is a right afforded a suspect or accused during custodial investigation. It is not an absolute
right and may be invoked or rejected in a criminal proceeding and, with more reason, in an
administrative inquiry.37
Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang waiver ay
nakasulat at sa harap ng abogado, ay karapatang ibinibigay sa suspek o nasasakdal sa isang
custodial investigation. Ito ay hindi lubos na karapatan at maaring hingin o tanggihan sa
isang prosesong kriminal, at lalo na sa isang administratibong pagsisiyasat.
While investigations conducted by an administrative body may at times be akin to a criminal
proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or
may not be assisted by counsel, irrespective of the nature of the charges and of respondents
capacity to represent himself, and no duty rests on such body to furnish the person being
investigated with counsel.38

Thus, the right to counsel is not imperative in administrative investigations because such inquiries
are conducted merely to determine whether there are facts that merit disciplinary measures against
erring public officers and employees, with the purpose of maintaining the dignity of government
service.39
Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang
administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung may
sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o empleyado, para
mapanatili ang dignidad ng paglilingkod sa pamahalaan.
There is nothing in the Constitution that says that a party in a non-litigation proceeding is entitled to
be represented by counsel and that, without such representation, he shall not be bound by such
proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession
was not engrafted in the due process clause such that without the participation of its members, the
safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot
validly act at all except only with a lawyer at his side.40
More than that, petitioners first Answer may be taken against him, as he executed it in the course of
the administrative proceedings below. This is pursuant to Rule 130, Section 26 of the Rules of Court
which provides that the "act, declaration or omission of a party as to a relevant fact may be given
against him." In People v. Lising,41 the Court held:
Extrajudicial statements are as a rule, admissible as against their respective declarants,
pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may
be given against him. This is based upon the presumption that no man would declare
anything against himself, unless such declarations were true. A mans act, conduct and
declarations wherever made, provided they be voluntary, are admissible against him, for the
reason that it is fair to presume that they correspond with the truth and it is his fault if they
are not.
There is also no merit in the contention that petitioners sickness affected the preparation of his first
Answer. He presented no convincing evidence that his disease at the time he formulated that answer
diminished his capacity to formulate a true, clear and coherent response to any query. In fact, its
contents merely reiterated his verbal explanation to the auditing team on January 5, 1989 on how he
disposed of the missing funds.
II. There is no violation of the rights to a speedy disposition of the case and to due process of
law.
We now discuss the right to a speedy trial and disposition, the balancing test, due process, and cruel
and unusual punishment.
Petitioner asserts that his right to due process of law and to speedy disposition of his case was
violated because the decision of the Sandiganbayan was handed down after the lapse of more than
twelve years. The years that he had to wait for the outcome of his case were allegedly spent in
limbo, pain and agony.42
We are not persuaded.
Due process of law as applied to judicial proceedings has been interpreted to mean "a law which
hears before it condemns, which proceeds on inquiry, and renders judgment only after

trial."43 Petitioner cannot complain that his right to due process has been violated. He was given all
the chances in the world to present his case, and the Sandiganbayan rendered its decision only after
considering all the pieces of evidence presented before it.
Petitioners claim of violation of his right to a speedy disposition of his case must also fail.
The 1987 Constitution44 guarantees the right of an accused to speedy trial. Both the 1973
Constitution in Section 16 of Article IV and the 1987 Constitution in Section 16 of Article III, Bill of
Rights, are also explicit in granting to the accused the right to speedy disposition of his case.45
In Barker v. Wingo,46 the United States Supreme Court was confronted for the first time
with two "rigid approaches" on speedy trial as "ways of eliminating some of the uncertainty which
courts experience protecting the right."47
The first approach is the "fixed-time period" which holds the view that "the Constitution requires a
criminal defendant to be offered a trial within a specified time period." 48 The second approach is
the "demand-waiver rule" which provides that "a defendant waives any consideration of his right to
speedy trial for any period prior to which he has not demanded trial. Under this rigid approach, a
prior demand is a necessary condition to the consideration of the speedy trial right." 49
The fixed-time period was rejected because there is "no constitutional basis for holding that the
speedy trial can be quantified into a specific number of days or months." 50 The demand-waiver rule
was likewise rejected because aside from the fact that it is "inconsistent with this Courts
pronouncements on waiver of constitutional rights,"51 "it is insensitive to a right which we have
deemed fundamental."52
The Court went on to adopt a middle ground: the "balancing test," in which "the conduct of both the
prosecution and defendant are weighed."53 Mr. Justice Powell, ponente, explained the concept, thus:
A balancing test necessarily compels courts to approach speedy trial cases on an ad
hoc basis.We can do little more than identify some of the factors which courts should
assess in determining whether a particular defendant has been deprived of his right. Though
some might express them in different ways, we identify four such factors: Length of
delay, the reason for the delay, the defendants assertion of his right, and prejudice to
the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other factors that
go into the balance.Nevertheless, because of the imprecision of the right to speedy
trial, the length of delay that will provoke such an inquiry is necessarily dependent
upon the peculiar circumstances of the case. To take but one example, the delay that can
be tolerated for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the
delay. Here, too, different weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should be weighted heavily against
the government. A more neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered since the ultimate responsibility
for such circumstances must rest with the government rather than with the defendant. Finally,
a valid reason, such as a missing witness, should serve to justify appropriate delay. We have
already discussed the third factor, the defendants responsibility to assert his

right. Whether and how a defendant asserts his right is closely related to the other factors
we have mentioned. The strength of his efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most particularly by the
personal prejudice, which is not always readily identifiable, that he experiences. The
more serious the deprivation, the more likely a defendant is to complain. The defendants
assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right. We emphasize that failure to assert
the right will make it difficult for a defendant to prove that he was denied a speedy
trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed
in the light of the interests of defendants which the speedy trial right was designed to
protect. This Court has identified three such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of the
entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall accurately events of the distant past.
Loss of memory, however, is not always reflected in the record because what has been
forgotten can rarely be shown.54 (Emphasis supplied)
Philippine jurisprudence has, on several occasions, adopted the balancing test.
In 1991, in Gonzales v. Sandiganbayan,55 this Court ruled:
It must be here emphasized that the right to a speedy disposition of a case, like the right to
speedy trial, is deemed violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial are asked
for and secured, or when without cause or justifiable motive a long period of time is allowed
to elapse without the party having his case tried. Equally applicable is the balancing
test used to determine whether a defendant has been denied his right to a speedy trial, or a
speedy disposition of a case for that matter, in which the conduct of both the prosecution and
the defendant are weighed, and such factors as length of the delay, reason for the delay, the
defendants assertion or non-assertion of his right, and prejudice to the defendant resulting
from the delay, are considered. (Underscoring supplied)
Subsequently, in Dela Pea v. Sandiganbayan,56 this Court again enumerated the factors that should
be considered and balanced, namely: (1) length of delay; (2) reasons for the delay; (3) assertion or
failure to assert such right by the accused; and (4) prejudice caused by the delay.57
Once more, in Mendoza-Ong v. Sandiganbayan,58 this Court reiterated that the right to speedy
disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended
by vexatious, capricious and oppressive delays. 59 In the determination of whether said right has been
violated, particular regard must be taken of the facts and circumstances peculiar to each case. 60 The
conduct of both the prosecution and defendant, the length of the delay, the reasons for such delay,
the assertion or failure to assert such right by accused, and the prejudice caused by the delay are
the factors to consider and balance.61
Moreover, the determination of whether the delays are of said nature is relative and cannot be based
on a mere mathematical reckoning of time.62

Measured by the foregoing yardstick, We rule that petitioner was not deprived of his right to a
speedy disposition of his case.
More important than the absence of serious prejudice, petitioner himself did not want a speedy
disposition of his case.63 Petitioner was duly represented by counsel de parte in all stages of the
proceedings before the Sandiganbayan. From the moment his case was deemed submitted for
decision up to the time he was found guilty by the Sandiganbayan, however, petitioner has not filed a
single motion or manifestation which could be construed even remotely as an indication that he
wanted his case to be dispatched without delay.
Petitioner has clearly slept on his right. The matter could have taken a different dimension if during
all those twelve years, petitioner had shown signs of asserting his right to a speedy disposition of his
case or at least made some overt acts, like filing a motion for early resolution, to show that he was
not waiving that right.64
Currit tempus contra decides et sui juris contempores: Time runs against the slothful and those who
neglect their rights. Ang panahon ay hindi panig sa mga tamad at pabaya sa kanilang
karapatan. Vigilantis sed non dormientibus jura in re subveniunt. The law aids the vigilant and not
those who slumber in their rights. Ang batas ay tumutulong sa mga mapagbantay at hindi sa
mga humihimbing sa kanilang karapatan.
Pending his conviction by the Sandiganbayan, petitioner may have truly lived in suspicion and
anxiety for over twelve years. However, any prejudice that may have been caused to him in all those
years was only minimal. The supposed gravity of agony experienced by petitioner is more imagined
than real.
This case is analogous to Guerrero v. Court of Appeals.65 There, the Court ruled that there was no
violation of petitioners right to speedy trial and disposition of his case inasmuch as he failed
seasonably to assert his rights:
In the present case, there is no question that petitioner raised the violation against his own
right to speedy disposition only when the respondent trial judge reset the case for rehearing.
It is fair to assume that he would have just continued to sleep on his right a situation
amounting to laches had the respondent judge not taken the initiative of determining the
non-completion of the records and of ordering the remedy precisely so he could dispose of
the case. The matter could have taken a different dimension if during all those ten years
between 1979 when accused filed his memorandum and 1989 when the case was re-raffled,
the accused showed signs of asserting his right which was granted him in 1987 when the
new Constitution took effect, or at least made some overt act (like a motion for early
disposition or a motion to compel the stenographer to transcribe stenographic notes) that he
was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right.
While this Court recognizes the right to speedy disposition quite distinctly from the right to a
speedy trial, and although this Court has always zealously espoused protection from
oppressive and vexatious delays not attributable to the party involved, at the same time, we
hold that a partys individual rights should not work against and preclude the peoples equally
important right to public justice. In the instant case, three people died as a result of the crash
of the airplane that the accused was flying. It appears to us that the delay in the disposition
of the case prejudiced not just the accused but the people as well. Since the accused has
completely failed to assert his right seasonably and inasmuch as the respondent judge was
not in a position to dispose of the case on the merits due to the absence of factual basis, we

hold it proper and equitable to give the parties fair opportunity to obtain (and the court to
dispense) substantial justice in the premises.
III. The law relied upon in convicting petitioner is not cruel and unusual. It does not violate
Section 19, Article III of the Bill of Rights.
What constitutes cruel and unusual punishment has not been exactly defined. 66 The Eighth
Amendment of the United States Constitution,67 the source of Section 19, Article III of the Bill of
Rights68 of our own Constitution, has yet to be put to the test to finally determine what constitutes
cruel and inhuman punishment.69
Cases that have been decided described, rather than defined, what is meant by cruel and unusual
punishment. This is explained by the pronouncement of the United States Supreme Court that "[t]he
clause of the Constitution, in the opinion of the learned commentators, may be therefore
progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion
becomes enlightened by a humane justice."70
In Wilkerson v. Utah,71 Mr. Justice Clifford of the United States Supreme Court opined that "[d]ifficulty
would attend the effort to define with exactness the extent of the constitutional provision which
provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that
punishments of torture, x x x and all others in the same line of unnecessary cruelty, are forbidden by
that amendment to the constitution."72
In In Re: Kemmler,73 Mr. Chief Justice Fuller of that same Court stated that "[p]unishments are cruel
when they involve torture or a lingering death; but the punishment of death is not cruel within the
meaning of that word as used in the constitution. It implies x x x something more inhuman and
barbarous, something more than the mere extinguishment of life."74
Again, in Weems v. U.S.,75 Mr. Justice McKenna held for the Court that cadena temporal and its
accessory penalties "has no fellow in American legislation. Let us remember that it has come to us
from a government of a different form and genus from ours. It is cruel in its excess of imprisonment
and that which accompanies and follows imprisonment. It is unusual in character. Its punishments
come under the condemnation of the Bill of Rights, both on account of their degree and kind. And
they would have those bad attributes even if they were found in a Federal enactment, and not taken
from an alien source."
In Echegaray v. Executive Secretary,76 this Court in a per curiam Decision held that Republic Act No.
8177,77even if it does not provide in particular the details involved in the execution by lethal injection,
is not cruel, degrading or inhuman, and is thus constitutional. Any infliction of pain in lethal injection
is merely incidental in carrying out the execution of the death penalty and does not fall within the
constitutional proscription against cruel, degrading or inhuman punishment. 78
The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete
but may acquire meaning as public opinion becomes enlightened by humane justice and must draw
its meaning from the evolving standards of decency that mark the progress of a maturing society.79
In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of
malversation of public funds "that ha[ve] been replenished, remitted and/or returned" to the
government is cruel and therefore unconstitutional, "as government has not suffered any damage." 80
The argument is specious on two grounds.

First. What is punished by the crime of malversation is the act of a public officer who, by reason of
the duties of his office, is accountable for public funds or property, shall appropriate the same, or
shall take and misappropriate or shall consent, or through abandonment or negligence shall permit
any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property.81
Payment or reimbursement is not a defense for exoneration in malversation; it may only be
considered as a mitigating circumstance. This is because damage is not an element of malversation.
Second. There is strong presumption of constitutionality accorded to statutes.
It is established doctrine that a statute should be construed whenever possible in harmony with,
rather than in violation of, the Constitution.82 The presumption is that the legislature intended to enact
a valid, sensible and just law and one which operates no further than may be necessary to effectuate
the specific purpose of the law.83 It is presumed that the legislature has acted within its constitutional
powers. So, it is the generally accepted rule that every statute, or regularly accepted act, is, or will
be, or should be, presumed to be valid and constitutional. 84
He who attacks the constitutionality of a law has the onus probandi to show why such law is
repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim that a
law is cruel, unusual, or inhuman, like the stance of petitioner, must fail.
IV. On the penalty
The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years and one (1)
day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal,
as maximum. In imposing the penalty, it found that petitioner was entitled to the mitigating
circumstance of payment which is akin to voluntary surrender.
Article 217 penalizes malversation in the following tenor:
Article 217. Malversation of public funds or property. Presumption of malversation. Any
public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take and misappropriate or shall consent, or
through abandonment or negligence shall permit any other person to take such public funds
or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property.
xxxx
4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 but is less than 22,000 pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total
value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable upon demand by any duly authorized officer, shall be prima

facie evidence that he has put such missing funds or property to personal uses.
(Underscoring supplied)
The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its
maximum period to reclusion perpetua, which has a range of seventeen (17) years, four (4) months
and one (1) day to forty (40) years.
However, the commission of the crime was attended by the mitigating circumstance akin to voluntary
surrender. As correctly observed by the Sandiganbayan, petitioner restituted the full amount even
before the prosecution could present its evidence. That is borne by the records.
It bears stressing that the full restitution of the amount malversed will not in any way exonerate an
accused, as payment is not one of the elements of extinction of criminal liability. Under the law, the
refund of the sum misappropriated, even before the commencement of the criminal prosecution,
does not exempt the guilty person from liability for the crime.85 At most, then, payment of the amount
malversed will only serve as a mitigating circumstance86 akin to voluntary surrender, as provided for
in paragraph 7 of Article 1387 in relation to paragraph 1088 of the same Article of the Revised Penal
Code.
But the Court also holds that aside from voluntary surrender, petitioner is entitled to the mitigating
circumstance of no intention to commit so grave a wrong, 89 again in relation to paragraph 10 of
Article 13.90
The records bear out that petitioner misappropriated the missing funds under his custody and control
because he was impelled by the genuine love for his brother and his family. Per his admission,
petitioner used part of the funds to pay off a debt owed by his brother. Another portion of the
misappropriated funds went to his medications for his debilitating diabetes.
Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00) of the funds
in less than one month and a half and said small balance in three (3) months from receipt of demand
of COA on January 5, 1999. Evidently, there was no intention to commit so grave a wrong.
Of course, the end does not justify the means. To condone what petitioner has done because of the
nobility of his purpose or financial emergencies will become a potent excuse for malefactors and
open the floodgates for more corruption in the government, even from "small fry" like him.
The bottom line is a guilty person deserves the penalty given the attendant circumstances and
commensurate with the gravity of the offense committed. Thus, a reduction in the imposable penalty
by one degree is in order. Article 64 of the Revised Penal Code is explicit:
Art. 64. Rules for the application of penalties which contain three periods. In cases in which
the penalties prescribed by law contains three periods, whether it be a single divisible
penalty or composed of three difference penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the courts shall observe for the
application of the penalty, the following rules, according to whether there are no mitigating or
aggravating circumstances:
xxxx
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that

prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances. (Underscoring supplied)
Considering that there are two mitigating circumstances, the prescribed penalty is reduced to prision
mayor in its maximum period to reclusion temporal in its medium period, to be imposed in any of its
periods. The new penalty has a range of ten (10) years and one (1) day to seventeen (17) years and
four (4) months. Applying the Indeterminate Sentence Law,91 the maximum term could be ten (10)
years and one (1) day of prision mayormaximum, while the minimum term is again one degree
lower92 and could be four (4) years, two (2) months and one (1) day of prision correccional maximum.
In the 1910 case of U.S. v. Reyes,93 the trial judge entered a judgment of conviction against the
accused and meted to him the penalty of "three years imprisonment, to pay a fine of P1,500.00, and
in case of insolvency to suffer subsidiary imprisonment at the rate of one day for every P2.50 that he
failed to pay, which subsidiary imprisonment, however, should not exceed one third of the principal
penalty" and to be "perpetually disqualified for public office and to pay the costs." This was well
within the imposable penalty then under Section 1 of Act No. 1740, 94 which is "imprisonment for not
less than two months nor more than ten years and, in the discretion of the court, by a fine of not
more than the amount of such funds and the value of such property."
On appeal to the Supreme Court, the accuseds conviction was affirmed but his sentence was
modified and reduced to six months. The court, per Mr. Justice Torres, reasoned thus:
For the foregoing reasons the several unfounded errors assigned to the judgment appealed
from have been fully refuted, since in conclusion it is fully shown that the accused unlawfully
disposed of a portion of the municipal funds, putting the same to his own use, and to that of
other persons in violation of Act. No. 1740, and consequently he has incurred the penalty
therein established as principal of the crime of misappropriation; and even though in
imposing it, it is not necessary to adhere to the rules of the Penal Code, the court in using its
discretional powers as authorized by law, believes that the circumstances present in the
commission of crimes should be taken into consideration, and in the present case the
amount misappropriated was refunded at the time the funds were counted.95 (Underscoring
supplied)
We opt to exercise an analogous discretion.
WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is AFFIRMED with
theMODIFICATION that petitioner is hereby sentenced to suffer the indeterminate penalty of four (4)
years, two (2) months and one (1) day of prision correccional, as minimum term, to ten (10) years
and one (1) day of prision mayor, as maximum term, with perpetual special disqualification. He is
likewise ORDERED to pay a fine ofP72,784.57, the amount equal to the funds malversed.
Costs against petitioner.
SO ORDERED.
RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
Vice Associate Justice Minita V. Chico-Nazario. Justice Nazario is on official leave per
Special Order No. 484 dated January 11, 2008.
*

Under Rule 45 of the Rules of Court per A.M. No. 00-5-03-SC.

Penned by Associate Justice Diosdado M. Peralta, with Associate Justices Teresita


Leonardo-De Castro (now a member of this Court) and Francisco H. Villaruz, Jr.,
concurring; rollo, pp. 25-38.
2

Criminal Case No. 14230.

Pursuant to Office Order No. 88-55 dated December 22, 1988 issued by Provincial Auditor
Fausto P. De La Serna. (Annex "B")
4

Exhibit "C."

Exhibit "E."

Exhibit "D."

Exhibit "F."

TSN, June 25, 1990, p. 25.

10

Exhibit "E."

11

Exhibit "G."

12

Exhibits "H" & "H-1" to "H-5."

13

Rollo, pp. 25-26.

14

Id. at 26.

15

Exhibit "G."

16

Exhibits "1" to "3."

17

Exhibit "5-B."

18

Exhibit "5."

19

Exhibit "7."

20

Exhibits "7-a" to "7-f."

21

Rollo, p. 26.

22

Id. at 37.

23

Id. at 39-44.

24

Id. at 45-48.

25

Id. at 49-52.

26

Id. at 11-24.

27

Id. at 17.

28

Reyes, L.B., The Revised Penal Code (Book II), 15th ed., rev. 2001, pp. 393-394.

Id. at 394. See also Nizurtado v. Sandiganbayan, G.R. No. 107838, December 7, 1994,
239 SCRA 33, 42; Peanueva, Jr. v. Sandiganbayan, G.R. Nos. 98000-02, June 30, 1993,
224 SCRA 86, 92.
29

De Guzman v. People, G.R. No. L-54288, December 15, 1982, 119 SCRA 337, 347
(emphasis ours), citing Aquino, The Revised Penal Code, Vol. II, 1976 ed., citing People v.
Mingoa, 92 Phil. 856 (1953); U.S. v. Javier, 6 Phil. 334 (1906); U.S. v. Melencio, 4 Phil. 331
(1905). See also Quizo v. Sandiganbayan, G.R. No. L-77120, April 6, 1987, 149 SCRA 108.
30

31

Quizo v. Sandiganbayan, supra at 113, citing U.S. v. Catolico, 18 Phil. 504 (1911).

32

Id.

33

TSN, June 5, 1990, p. 25.

34

Exhibit "G."

35

Exhibit "5."

36

TSN, September 20, 1990, pp. 37-39.

37

Lumiqued v. Exevea, G.R. No. 117565, November 18, 1997, 282 SCRA 125, 138-139.

Id. at 140, citing Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 210
P. 2d 666 (1949).
38

39

Id. at 141.

40

Nera v. The Auditor General, G.R. No. L-24957, August 3, 1988, 164 SCRA 1.

G.R. Nos. 106210-11, January 30, 1998, 285 SCRA 595, 624, citing Vicente, F., Evidence,
1990 ed., p. 305.
41

Rollo, p. 19. Petitioner claims that he had to wait for more than thirteen (13) years.
However, this is erroneous. The records would show that he rested his case on October 20,
1990, while the Sandiganbayan handed down its questioned Decision on September 24,
2003, or after the lapse of twelve (12) years and eleven (11) months.
42

43

16C C.J.S. Constitutional Law, Sec. 946.

44

Bill of Rights of the Constitution (1987), Art. III, Sec. 14 provides:


(1) No person shall be heard to answer for a criminal offense without due process of
law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witness face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is
unjustifiable. (Emphasis supplied)

"All persons shall have the right to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies."
45

46

407 US 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).

47

Barker v. Wingo, id. at 112.

48

Id.

49

Id. at 114.

50

Id. at 113.

51

Id. at 114.

52

Id. at 116.

53

Id.

54

Id. at 116-118.

55

G.R. No. 94750, July 16, 1991, 199 SCRA 298, 307.

56

G.R. No. 144542, June 29, 2001, 360 SCRA 478.

Dela Pea v. Sandiganbayan, id. at 485, citing Blanco v. Sandiganbayan, G.R. Nos.
136757-58, November 27 2000, 346 SCRA 108; Dansal v. Fernandez, Sr., G.R. No. 126814,
March 2, 2000, 327 SCRA 145, 153; Alvizo v. Sandiganbayan, G.R. No. 101689, March 17,
1993, 220 SCRA 55, 63.
57

58

G.R. Nos. 146368-69, October 18, 2004, 440 SCRA 423, 425-426.

Mendoza-Ong v. Sandiganbayan, id., citing Dimayacyac v. Court of Appeals, G.R. No.


136264, May 28, 2004, 430 SCRA 121.
59

60

Id., citing Rodriguez v. Sandiganbayan, G.R. No. 141710, March 3, 2004, 424 SCRA 236.

Id., citing Ty-Dazo v. Sandiganbayan, G.R. Nos. 143885-86, January 21, 2002, 374 SCRA
200, 203.
61

Id., citing Binay v. Sandiganbayan, G.R. Nos. 120681-83 & 128136, October 1, 1999, 316
SCRA 65.
62

63

See Barker v. Wingo, supra note 46.

64

See Dela Pea v. Sandiganbayan, supra note 56, at 488.

65

G.R. No. 107211, June 28, 1996, 257 SCRA 703, 715-716.

66

Weems v. U.S., 217 US 349, 30 S. Ct. 544, 54 L. Ed. 793, 19 Am. Ann. Cas. 705 (1910).

67

The Eighth Amendment of the United States Constitution provides:


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted. (Emphasis supplied)

68

Bill of Rights of the Constitution (1987), Art. III, Sec. 19 provides:


Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment against any
prisoner or detainee, or the use of substandard or inadequate penal facilities under
subhuman condition shall be dealt with by law. (Emphasis supplied)

69

See note 43.

Weems v. U.S., supra note 66, citing Mackin v. U.S., 117 US 348, 350, 29 L. Ed. 909, 910,
6 S. Ct. Rep. 777; Ex parte Wilson, 114 US 417, 427, 29 L. Ed. 89, 92.
70

71

99 US 130.

72

Wilkerson v. Utah, id. at 135.

73

136 US 436, 10 S. Ct. 930, 34 L. Ed. 519.

74

In Re: Kemmler, id. at 524.

75

Supra note 66.

76

G.R. No. 132601, October 12, 1998, 297 SCRA 754.

An Act Designating Death by Lethal Injection as the Method of Carrying Out Capital
Punishment, Amending For the Purpose Article 81 of the Revised Penal Code, As Amended
by Section 24 of Republic Act No. 7659. Sections 17 and 19 of the Rules and Regulations to
77

Implement Republic Act No. 8177 were, however, declared INVALID: (a) Section 17 because
it "contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic
Act No. 7659;" and (b) Section 19 because it "fails to provide for review and approval of the
Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual
confidential, hence, unavailable to interested parties including the accused/convict and
counsel."
78

Echegaray v. Executive Secretary, supra at 777.

Id. at 778-779, citing Ex Parte Granvel, 561 SW 2d 503, 509 (1978), citing Trop v.
Dulles, 356 US 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958); Estella v. Gamble, 429 US 97, 97
S. Ct. 285, 290, 50 L. Ed. 2d 251, 258-259 (1976).
79

80

Rollo, p. 22.

81

See Revised Penal Code, Art. 217.

Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, December 6,
2000, 347 SCRA 128, citing San Miguel Corporation v. Avelino, G.R. No. L-39699, March 14,
1979, 89 SCRA 69; Phil. Long Distance Telephone Co. v. Collector of Internal Revenue, 90
Phil. 674 (1952); Teehankee v. Rovira, 75 Phil. 634 (1945).
82

83

Id., citing In re Guarina, 24 Phil. 37 (1913).

84

16A C.J.S. Constitutional Law, Sec. 96(a).

85

U.S. v. Reyes, 14 Phil. 718 (1910). See also People v. Livara, 94 Phil. 771 (1954).

Estamos con el. Hon. Procurador General en que ha lugar a estimar la devolucin hecha
por e apelante de la cantidad defraudada como circumstancia atenuante especial sin
ninguna agravante que la compense. Esto as, procede condenar al apelante a sufrir en su
grado minmo la pena sealada por la ley.(People v. Velasquez, 72 Phil. 98, 100 [1941])
(Italics supplied)
86

Revised Penal Code, Art. 13, Par. 7. That the offender had voluntarily surrendered himself
to a person in authority or his agents, or that he had voluntarily confessed his guilt before the
court prior to the presentation of the evidence for the prosecution.
87

Id., Sec. 10. And, finally, any other circumstance of a similar nature and analogous to those
above mentioned.
88

Revised Penal Code, Art. 13, Par. 3. That the offender had no intention to commit so grave
a wrong as that committed.
89

90

Supra note 88.

Act No. 4103, as amended, otherwise known as the Indeterminate Sentence Law,
provides:
91

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the


Revised Penal Code, or its amendments, the court shall sentence the accused to an

indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum of which shall be within the range of the penalty next lower
to that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and shall
not be less than the minimum term prescribed by the same. (As amended by Act. No.
4225)
92

Guevarra v. Court of Appeals, G.R. No. 41061, July 16, 1990, 187 SCRA 484.

93

14 Phil. 718, 721 (1910).

94

Enacted on October 3, 1907.

95

Id. at 725-726.

Republic of the Philippines


Supreme Court
Manila

SECOND DIVISION

DELFIN TAN,
Petitioner,

G.R. No. 153820


Present:
QUISUMBING, J.,

CARPIO-MORALES,
**

NACHURA,

BRION, and

- versus -

ABAD, JJ.

ERLINDA C. BENOLIRAO,
ANDREW C. BENOLIRAO,
ROMANO C. BENOLIRAO,
DION C. BENOLIRAO,
SPS. REYNALDO TANINGCO
and
NORMA
BENOLIRAO,
EVELYN T. MONREAL, and

Promulgated:

D.
October 16, 2009

ANN KARINA TANINGCO,


Respondents.
x------------------------------------------------------------------------------------- x

DECISION
BRION, J.:
Is an annotation made pursuant to Section 4, Rule 74 of the
Rules of Court (Rules) on a certificate of title covering real
property considered an encumbrance on the property? We resolve
this question in the petition for review on certiorari[1] filed by
Delfin Tan (Tan) to assail the decision of the Court of Appeals (CA)
in CA-G.R. CV No. 52033[2] and the decision of the Regional Trial
Court (RTC)[3] that commonly declared the forfeiture of
his P200,000.00 down payment as proper, pursuant to the terms
of his contract with the respondents.

THE ANTECEDENTS

The facts are not disputed. Spouses Lamberto and Erlinda


Benolirao and the Spouses Reynaldo and Norma Taningco were
the co-owners of a 689-square meter parcel of land (property)
located in Tagaytay City and covered by Transfer Certificate of
Title (TCT) No. 26423. On October 6, 1992, the co-owners
executed a Deed of Conditional Sale over the property in favor of
Tan for the price of P1,378,000.00. The deed stated:
a)

An initial down-payment of TWO HUNDRED (P200,000.00) THOUSAND


PESOS, Philippine Currency, upon signing of this contract; then the
remaining balance of ONE MILLION ONE HUNDRED SEVENTY EIGHT
THOUSAND (P1,178,000.00) PESOS, shall be payable within a period of
one hundred fifty (150) days from date hereof without interest;

b)

That for any reason, BUYER fails to pay the remaining balance within
above mentioned period, the BUYER shall have a grace period of sixty (60)
days within which to make the payment, provided that there shall be an
interest of 15% per annum on the balance amount due from the SELLERS;

c)

That should in case (sic) the BUYER fails to comply with the terms and
conditions within the above stated grace period, then the SELLERS shall
have the right to forfeit the down payment, and to rescind this conditional
sale without need of judicial action;

d)

That in case, BUYER have complied with the terms and conditions of this
contract, then the SELLERS shall execute and deliver to the BUYER the
appropriate Deed of Absolute Sale;

Pursuant to the Deed of Conditional Sale, Tan issued and


delivered to the co-owners/vendors Metrobank Check No. 904407
for P200,000.00 as down payment for the property, for which the
vendors issued a corresponding receipt.

On November 6, 1992, Lamberto Benolirao died intestate.


Erlinda Benolirao (his widow and one of the vendors of the
property) and her children, as heirs of the deceased, executed an
extrajudicial settlement of Lambertos estate on January 20,
1993. On the basis of the extrajudicial settlement, a new
certificate of title over the property, TCT No. 27335, was issued
on March 26, 1993 in the names of the Spouses Reynaldo and
Norma Taningco and Erlinda Benolirao and her children. Pursuant
to Section 4, Rule 74 of the Rules, the following annotation was
made on TCT No. 27335:
x x x any liability to credirots (sic), excluded heirs and other
persons having right to the property, for a period of two (2) years, with
respect only to the share of Erlinda, Andrew, Romano and Dion, all
surnamed Benolirao

As stated in the Deed of Conditional Sale, Tan had


until March 15, 1993 to pay the balance of the purchase price. By
agreement of the parties, this period was extended by two
months, so Tan had until May 15, 1993 to pay the balance. Tan
failed to pay and asked for another extension, which the vendors
again granted. Notwithstanding this second extension, Tan still
failed to pay the remaining balance due on May 21, 1993. The
vendors thus wrote him a letter demanding payment of the
balance of the purchase price within five (5) days from notice;
otherwise, they would declare the rescission of the conditional
sale and the forfeiture of his down payment based on the terms of
the contract.

Tan refused to comply with the vendors demand and instead


wrote them a letter (dated May 28, 1993) claiming that the
annotation on the title, made pursuant to Section 4, Rule 74 of
the Rules, constituted an encumbrance on the property that
would prevent the vendors from delivering a clean title to
him. Thus, he alleged that he could no longer be required to pay
the balance of the purchase price and demanded the return of his
down payment.

When the vendors refused to refund the down payment, Tan,


through counsel, sent another demand letter to the vendors
on June 18, 1993. The vendors still refused to heed Tans demand,
prompting Tan to file on June 19, 1993 a complaint with the RTC of
Pasay City for specific performance against the vendors, including
Andrew Benolirao, Romano Benolirao, Dion Benolirao as heirs of
Lamberto Benolirao, together with Evelyn Monreal and Ann Karina
Taningco (collectively, therespondents). In his complaint, Tan
alleged that there was a novation of the Deed of Conditional Sale
done without his consent since the annotation on the title created

an encumbrance over the property. Tan prayed for the refund of


the down payment and the rescission of the contract.

On August 9, 1993, Tan amended his Complaint, contending


that if the respondents insist on forfeiting the down payment, he
would be willing to pay the balance of the purchase price provided
there is reformation of the Deed of Conditional Sale.In the
meantime, Tan caused the annotation on the title of a notice of lis
pendens.

On August 21, 1993, the respondents executed a Deed of


Absolute Sale over the property in favor of Hector de Guzman (de
Guzman) for the price of P689,000.00.

Thereafter, the respondents moved for the cancellation of


the notice of lis pendens on the ground that it was inappropriate
since the case that Tan filed was a personal action which did not
involve either title to, or possession of, real property. The RTC
issued an order dated October 22, 1993 granting the respondents
motion to cancel the lis pendens annotation on the title.

Meanwhile, based on the Deed of Absolute Sale in his favor,


de Guzman registered the property and TCT No. 28104 was issued
in his name. Tan then filed a motion to carry over the lis
pendens annotation to TCT No. 28104 registered in de Guzmans
name, but the RTC denied the motion.

On September 8, 1995, after due proceedings, the RTC rendered


judgment ruling that the respondents forfeiture of Tans down
payment was proper in accordance with the terms and conditions
of the contract between the parties. [4] The RTC ordered Tan to pay

the respondents the amount of P30,000.00, plus P1,000.00 per


court appearance, as attorneys fees, and to pay the cost of suit.

On appeal, the CA dismissed the petition and affirmed the ruling


of the trial court in toto. Hence, the present petition.

THE ISSUES

Tan argues that the CA erred in affirming the RTCs ruling to


cancel the lis pendens annotation on TCT No. 27335. Due to the
unauthorized novation of the agreement, Tan presented before
the trial court two alternative remedies in his complaint either the
rescission of the contract and the return of the down payment, or
the reformation of the contract to adjust the payment period, so
that Tan will pay the remaining balance of the purchase price only
after the lapse of the required two-year encumbrance on the
title. Tan posits that the CA erroneously disregarded the
alternative remedy of reformation of contract when it affirmed the
removal of the lis pendens annotation on the title.

Tan further contends that the CA erred when it recognized


the validity of the forfeiture of the down payment in favor of the
vendors. While admitting that the Deed of Conditional Sale
contained a forfeiture clause, he insists that this clause applies
only if the failure to pay the balance of the purchase price was
through his own fault or negligence. In the present case, Tan
claims that he was justified in refusing to pay the balance price
since the vendors would not have been able to comply with their
obligation to deliver a clean title covering the property.

Lastly, Tan maintains that the CA erred in ordering him to


pay the respondents P30,000.00, plus P1,000.00 per court
appearance as attorneys fees, since he filed the foregoing action
in good faith, believing that he is in the right.

The respondents, on the other hand, assert that


should be dismissed for raising pure questions
contravention of the provisions of Rule 45 of the
provides that only questions of law can be raised in
review on certiorari.

the petition
of fact, in
Rules which
petitions for

THE COURTS RULING

The petition is granted.

No new issues can be raised in the


Memorandum

At the onset, we note that Tan raised the following additional assignment of
errors in his Memorandum: (a) the CA erred in holding that the petitioner could
seek reformation of the Deed of Conditional Sale only if he paid the balance of the
purchase price and if the vendors refused to execute the deed of absolute sale; and
(b) the CA erred in holding that the petitioner was estopped from asking for the
reformation of the contract or for specific performance.

The Courts September 27, 2004 Resolution expressly stated that No new
issues may be raised by a party in his/its Memorandum. Explaining the reason for
this rule, we said that:

The raising of additional issues in a memorandum before the Supreme


Court is irregular, because said memorandum is supposed to be in support merely
of the position taken by the party concerned in his petition, and the raising of new
issues amounts to the filing of a petition beyond the reglementary period. The
purpose of this rule is to provide all parties to a case a fair opportunity to be
heard. No new points of law, theories, issues or arguments may be raised by a
party in the Memorandum for the reason that to permit these would be offensive
to the basic rules of fair play, justice and due process.[5]

Tan contravened the Courts explicit instructions by raising these additional


errors. Hence, we disregard them and focus instead on the issues previously raised
in the petition and properly included in the Memorandum.

Petition raises a question of law

Contrary to the respondents claim, the issue raised in the present petition defined in
the opening paragraph of this Decision is a pure question of law. Hence, the
petition and the issue it presents are properly cognizable by this Court.

Lis pendens annotation not proper in


personal actions

Section 14, Rule 13 of the Rules enumerates the instances


when a notice of lis pendens can be validly annotated on the title
to real property:
Sec. 14. Notice of lis pendens.
In an action afecting the title or the right of possession of
real property, the plaintiff and the defendant, when affirmative relief is
claimed in his answer, may record in the office of the registry of deeds
of the province in which the property is situated a notice of the
pendency of the action. Said notice shall contain the names of the
parties and the object of the action or defense, and a description of the
property in that province affected thereby. Only from the time of filing
such notice for record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have constructive notice of
the pendency of the action, and only of its pendency against the
parties designated by their real names.

The notice of lis pendens hereinabove mentioned may be


cancelled only upon order of the court, after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is
not necessary to protect the rights of the party who caused it to be
recorded.

The litigation subject of the notice of lis pendens must directly involve a
specific property which is necessarily affected by the judgment.[6]

Tans complaint prayed for either the rescission or the reformation of the
Deed of Conditional Sale. While the Deed does have real property for its object,
we find that Tans complaint is an in personam action, as Tan asked the court to
compel the respondents to do something either to rescind the contract and return
the down payment, or to reform the contract by extending the period given to pay
the remaining balance of the purchase price. Either way, Tan wants to enforce his
personal rights against the respondents, not against the property subject of the
Deed. As we explained in Domagas v. Jensen:[7]

The settled rule is that the aim and object of an action determine its
character. Whether a proceeding is in rem, or in personam, or quasi in rem for that
matter, is determined by its nature and purpose, and by these only. A
proceeding in personam is a proceeding to enforce personal rights and obligations
brought against the person and is based on the jurisdiction of the person, although
it may involve his right to, or the exercise of ownership of, specific property, or
seek to compel him to control or dispose of it in accordance with the mandate of
the court. The purpose of a proceeding in personam is to impose, through the
judgment of a court, some responsibility or liability directly upon the person of
the defendant. Of this character are suits to compel a defendant to specifically
perform some act or actions to fasten a pecuniary liability on him.

Furthermore, as will be explained in detail below, the contract between the parties
was merely a contract to sell where the vendors retained title and ownership to the
property until Tan had fully paid the purchase price. Since Tan had no claim of
ownership or title to the property yet, he obviously had no right to ask for the
annotation of a lis pendens notice on the title of the property.

Contract is a mere contract to


sell

A contract is what the law defines it to be, taking into


consideration its essential elements, and not what the contracting
parties call it.[8] Article 1485 of the Civil Code defines a contract of
sale as follows:
Art. 1458. By the contract of sale one of the contracting parties
obligates himself to transfer the ownership and to deliver a
determinate thing, and the other to pay therefor a price certain in
money or its equivalent.

A contract of sale may be absolute or conditional.

The very essence of a contract of sale is the transfer of


ownership in exchange for a price paid or promised. [9]

In contrast, a contract to sell is defined as a bilateral


contract whereby the prospective seller, while expressly
reserving the ownership of the property despite delivery
thereof to the prospective buyer, binds himself to sell the
property exclusively to the prospective buyer upon
fulfillment of the condition agreed, i.e., full payment of the
purchase price.[10] A contract to sell may not even be considered
as a conditional contract of sale where the seller may
likewise reserve title to the property subject of the sale until
the fulfillment of a suspensive condition, because in a
conditional contract of sale, the first element of consent is
present, although it is conditioned upon the happening of a
contingent event which may or may not occur. [11]

In the present case, the true nature of the contract is


revealed by paragraph D thereof, which states:
xxx
d)

That in case, BUYER has complied with the terms and conditions of this
contract, then the SELLERS shall execute and deliver to the BUYER the
appropriate Deed of Absolute Sale;

xxx

Jurisprudence has established that where the seller promises


to execute a deed of absolute sale upon the completion by the
buyer of the payment of the price, the contract is only a contract
to sell.[12] Thus, while the contract is denominated as a Deed of
Conditional Sale, the presence of the above-quoted provision
identifies the contract as being a mere contract to sell.

A Section 4, Rule 74 annotation is an


encumbrance on the property

While Tan admits that he refused to pay the balance of the purchase price, he
claims that he had valid reason to do so the sudden appearance of an annotation on
the title pursuant to Section 4, Rule 74 of the Rules, which Tan considered an
encumbrance on the property.

We find Tans argument meritorious.

The annotation placed on TCT No. 27335, the new title issued to reflect the
extrajudicial partition of Lamberto Benoliraos estate among his heirs, states:

x x x any liability to credirots (sic), excluded heirs and other


persons having right to the property, for a period of two (2) years, with
respect only to the share of Erlinda, Andrew, Romano and
Dion, all surnamed Benolirao [Emphasis supplied.]

This annotation was placed on the title pursuant to Section


4, Rule 74 of the Rules, which reads:

Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two (2) years after
the settlement and distribution of an estate in accordance with the provisions of either of the first
two sections of this rule, that an heir or other person has been unduly deprived of his lawful
participation in the estate, such heir or such other person may compel the settlement of the estate
in the courts in the manner hereinafter provided for the purpose of satisfying such lawful
participation. And if within the same time of two (2) years, it shall appear that there are debts
outstanding against the estate which have not been paid, or that an heir or other person has
been unduly deprived of his lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that purpose, after hearing,settle the amount of such
debts or lawful participation and order how much and in what manner each distributee shall
contribute in the payment thereof, and may issue execution, if circumstances require, against
the bond provided in the preceding section or against the real estate belonging to the
deceased, or both. Such bond and such real estate shall remain charged with a liability to
creditors, heirs, or other persons for the full period of two (2) years after such distribution,
notwithstanding any transfers of real estate that may have been made. [Emphasis supplied.]

Senator Vicente Francisco discusses this provision in his


book The Revised Rules of Court in the Philippines,[13] where he
states:
The provision of Section 4, Rule 74 prescribes the procedure to
be followed if within two years after an extrajudicial partition or
summary distribution is made, an heir or other person appears to have
been deprived of his lawful participation in the estate, or some
outstanding debts which have not been paid are discovered. When
the lawful participation of the heir is not payable in money,
because, for instance, he is entitled to a part of the real
property that has been partitioned, there can be no other
procedure than to cancel the partition so made and make a
new division, unless, of course, the heir agrees to be paid the
value of his participation with interest. But in case the lawful
participation of the heir consists in his share in personal property of
money left by the decedent, or in case unpaid debts are discovered
within the said period of two years, the procedure is not to cancel the
partition, nor to appoint an administrator to re-assemble the assets, as
was allowed under the old Code, but the court, after hearing, shall fix
the amount of such debts or lawful participation in proportion to or to
the extent of the assets they have respectively received and, if
circumstances require, it may issue execution against the real estate
belonging to the decedent, or both. The present procedure is more
expedient and less expensive in that it dispenses with the appointment
of an administrator and does not disturb the possession enjoyed by the
distributees.[14] [Emphasis supplied.]

An annotation is placed on new certificates of title issued


pursuant to the distribution and partition of a decedents real
properties to warn third persons on the possible interests of
excluded heirs or unpaid creditors in these properties. The
annotation, therefore, creates a legal encumbrance or lien
on the real property in favor of the excluded heirs or
creditors. Where a buyer purchases the real property
despite the annotation, he must be ready for the
possibility that the title could be subject to the rights of
excluded parties. The cancellation of the sale would be the
logical consequence where: (a) the annotation clearly appears on
the title, warning all would-be buyers; (b) the sale unlawfully
interferes with the rights of heirs; and (c) the rightful heirs bring
an action to question the transfer within the two-year period
provided by law.

As we held in Vda. de Francisco v. Carreon:[15]


And Section 4, Rule 74 xxx expressly authorizes the court to give
to every heir his lawful participation in the real estate notwithstanding
any transfers of such real estate and to issue execution thereon. All
this implies that, when within the amendatory period the realty
has been alienated, the court in re-dividing it among the heirs
has the authority to direct cancellation of such alienation in
the same estate proceedings, whenever it becomes necessary
to do so. To require the institution of a separate action for such
annulment would run counter to the letter of the above rule and the
spirit of these summary settlements. [Emphasis supplied.]

Similarly, in Sps. Domingo v. Roces,[16] we said:

The foregoing rule clearly covers transfers of real property


to any person, as long as the deprived heir or creditor vindicates his
rights within two years from the date of the settlement and distribution
of estate. Contrary to petitioners contention, the efects of this
provision are not limited to the heirs or original distributees of
the estate properties, but shall afect any transferee of the
properties. [Emphasis supplied.]

Indeed, in David v. Malay,[17] although the title of the property


had already been registered in the name of the third party buyers,
we cancelled the sale and ordered the reconveyance of the
property to the estate of the deceased for proper disposal among
his rightful heirs.

By the time Tans obligation to pay the balance of the


purchase price arose on May 21, 1993 (on account of the
extensions granted by the respondents), a new certificate of title
covering the property had already been issued on March 26,
1993, which contained the encumbrance on the property; the
encumbrance would remain so attached until the expiration of the
two-year period. Clearly, at this time, the vendors could no longer
compel Tan to pay the balance of the purchase since considering
they themselves could not fulfill their obligation to transfer a
clean title over the property to Tan.

Contract to sell is not rescinded but


terminated

What then happens to the contract?

We have held in numerous cases[18] that the remedy of rescission


under Article 1191 cannot apply to mere contracts to sell. We explained the reason
for this in Santos v. Court of Appeals,[19] where we said:
[I]n a contract to sell, title remains with the vendor and does not pass on to the
vendee until the purchase price is paid in full. Thus, in a contract to sell, the
payment of the purchase price is a positive suspensive condition. Failure to pay
the price agreed upon is not a mere breach, casual or serious, but a situation
that prevents the obligation of the vendor to convey title from acquiring an
obligatory force. This is entirely different from the situation in a contract of sale,
where non-payment of the price is a negative resolutory condition. The effects in
law are not identical. In a contract of sale, the vendor has lost ownership of the
thing sold and cannot recover it, unless the contract of sale is rescinded and set
aside. In a contract to sell, however, the vendor remains the owner for as long
as the vendee has not complied fully with the condition of paying the
purchase price. If the vendor should eject the vendee for failure to meet the
condition precedent, he is enforcing the contract and not rescinding it. x x
x Article 1592 speaks of non-payment of the purchase price as a resolutory
condition. It does not apply to a contract to sell. As to Article 1191, it is
subordinated to the provisions of Article 1592 when applied to sales of
immovable property. Neither provision is applicable [to a contract to sell].
[Emphasis supplied.]

We, therefore, hold that the contract to sell was terminated when the vendors
could no longer legally compel Tan to pay the balance of the purchase price as a
result of the legal encumbrance which attached to the title of the property. Since
Tans refusal to pay was due to the supervening event of a legal encumbrance on the
property and not through his own fault or negligence, we find and so hold that the
forfeiture of Tans down payment was clearly unwarranted.

Award of Attorneys fees

As evident from our previous discussion, Tan had a valid reason for refusing
to pay the balance of the purchase price for the property. Consequently, there is no
basis for the award of attorneys fees in favor of the respondents.

On the other hand, we award attorneys fees in favor of Tan, since he was
compelled to litigate due to the respondents refusal to return his down payment
despite the fact that they could no longer comply with their obligation under the
contract to sell, i.e., to convey a clean title. Given the facts of this case, we find the
award of P50,000.00 as attorneys fees proper.

Monetary award is subject to


legal interest

Undoubtedly, Tan made a clear and unequivocal demand on


the vendors to return his down payment as early as May 28,
1993. Pursuant to

our definitive ruling in Eastern Shipping Lines, Inc. v. Court of


Appeals,[20] we
hold
that
the
vendors
should
return
the P200,000.00 down payment to Tan, subject to the legal
interest of 6% per annum computed from May 28, 1993, the date
of the first demand letter.

Furthermore, after a judgment has become final and executory,


the rate of legal interest, whether the obligation was in the form
of a loan or forbearance of money or otherwise, shall be 12% per
annum from such finality until its satisfaction. Accordingly, the

principal obligation of P200,000.00 shall bear 6% interest from the


date of first demand or from May 28, 1993. From the date the
liability for the principal obligation and attorneys fees has become
final and executory, an annual interest of 12% shall be imposed
on these obligations until their final satisfaction, this interim
period being deemed to be by then an equivalent to a
forbearance of credit.

WHEREFORE, premises considered, we hereby GRANT the


petition and, accordingly, ANNUL and SET ASIDE the May 30,
2002 decision of the Court of Appeals in CA-G.R. CV No. 52033.
Another judgment is rendered declaring the Deed of Conditional
Sale terminated and ordering the respondents to return
the P200,000.00 down payment to petitioner Delfin Tan, subject to
legal interest of 6% per annum, computed from May 28,
1993. The respondents are also ordered to pay, jointly and
severally, petitioner Delfin Tan the amount of P50,000.00 as and
by way of attorneys fees. Once this decision becomes final and
executory, respondents are ordered to pay interest at 12% per
annum on the principal obligation as well as the attorneys
fees, until full payment of these amounts. Costs against the
respondents.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES


Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice

ROBERTO A. ABAD
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the
Courts Division.

LEONARDO A. QUISUMBING
Acting Chief Justice

Designated Acting Chief Justice effective October 12 to 16, 2009 per Special Order No. 721 dated October 5, 2009.

**

Designated additional Member of the Second Division effective October 7, 2009 per Special Order No. 730
dated October 5, 2009.

[1]

Under Rule 45 of the Rules of Court, dated July 25, 2002; rollo, pp. 30-50.

[2]

Penned by Associate Justice Romeo J. Callejo, Sr. (retired member of this Court), with the concurrence of
Associate Justice Remedios Salazar-Fernando and Associate Justice Danilo B. Pine; id., pp. 6- 26.

[3]

Dated September 8, 1995; id, pp. 76-82.

[4]

Id., pp. 76-82.

[5]

Heirs of Marasigan v. Marasigan, G.R.

[6]

Heirs of Eugenio Lopez, Sr. v. Enriquez, G.R. No. 146262, January 21, 2005, 449 SCRA 173.

[7]

G.R. No. 158407, January 17, 2005, 448 SCRA 663.

[8]

Quiroga v. Parsons Hardware Co., 38 Phil. 501 (1918).

[9]

Schmid & Oberly, Inc. v. RJL Martinez Fishing Corp., G.R. No. 75198, October 18, 1988, 166 SCRA 493,
citing Commissioner of Internal Revenue v. Constantino, 31 SCRA 779 (1970); Ker & Co., Ltd. v. Lingad, No. L20871, April 30, 1971, 38 SCRA 524, citing Salisbury v. Brooks, 94 SE 117 (1917).

[10]

No. 156078, March 14, 2008, 548 SCRA 409.

Sps. Ebrada v. Sps. Ramos, G.R. No. 154413, August 31, 2005, 468 SCRA 597.

[11]

Sps. Reyes v. Salvador, et al., G.R. No. 139047, September 11, 2008, citing Coronel v. CA,
263 SCRA 15 (1996).

[12]

[13]
[14]

Philippine National Bank v. Court of Appeals, 330 Phil. 1048 (1996).


Volume V-A (1970 ed.).

Id., pp. 701-702, citing McMicking v. Sy Combieng, 21 Phil. 211 (1912); Lopez v. Enriquez,
16 Phil. 336 (1910); Espino v. Rovira, 50 Phil. 152 (1927).

[15]

95 Phil. 237 (1954).

[16]

G.R. No. 147468, April 9, 2003, 401 SCRA 197.

[17]

G.R. No. 132644, November 19, 1999, 318 SCRA 711.

[18]

Gomez v. Court of Appeals, G.R. No. 120747, September 21, 2000, 340 SCRA 720; Padilla v. Paredes, G.R. No.
124874, March 17, 2000, 328 SCRA 434; Valarao v. Court of Appeals, G.R. No. 130347, March 3, 1999, 304
SCRA 155; Pangilinan v. Court of Appeals, G.R. No. 83588, September 29, 1997, 279 SCRA 590; Rillo v. Court
of Appeals, G.R. No. 125347, June 19, 1997, 274 SCRA 461.

[19]

G.R. No. 120820, August 1, 2000, 337 SCRA 67.

[20]

G.R. No. 97412, July 12, 1994, 234 SCRA 78.

The Court held:

2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of
damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however,
shall be adjudged on unliquidated claims or damages except when or until the demand can be established with
reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest
shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but
when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to
run only from the date of the judgment of the court is made (at which time the quantification of damages may be
deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any
case, be on the amount of finally adjudged

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
A.M. No. 11-7-10-SC

July 31, 2012

Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by
the Retired Chief/Associate Justices of the Supreme Court.
RESOLUTION
PER CURIAM:
The present administrative matter stems from the two Memoranda, dated July 14, 2011 and August
10, 2010, submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative
Officer, Office of Administrative Services, to the Office of the Chief Justice. These

Memoranda essentially ask the Court to determine the proper formula to be used in computing the
appraisal value that a retired Chief Justice and several Associate Justices of the Supreme Court
have to pay to acquire the government properties they used during their tenure.
THE FACTUAL ANTECEDENTS
This issue has its roots in the June 8, 2010 Opinion1 issued by the Legal Services Sector, Office of
the General Counsel of the Commission on Audit (COA), which found that an underpayment
amounting to P221,021.50 resulted when five (5) retired Supreme Court justices purchased from the
Supreme Court the personal properties assigned to them during their incumbency in the Court, to
wit:
1wphi1

Name of Justice

Artemio Panganiban
(Chief Justice)

Items Purchased

Valuation under
CFAG
(in pesos)

Valuation under
COA
Memorandum
No. 98-569A
(in pesos)

Difference
(in pesos)

Toyota Camry,
2003 model

341,241.10

365,000.00

23,758.90

Toyota Grandia,
2002 model

136,500.00

151,000.00

14,500.00

Toyota Camry,
2001 model

115,800.00

156,000.00

40,200.00

Toyota Camry,
2005 model

579,532.50

580,600.00

1,067.50

Toyota Grandia,
2003 model

117,300.00

181,200.00

63,900.00

Angelina S. Gutierrez
(Associate Justice)

Toyota Grandia,
2002 model

115,800.00

150,600.00

34,800.00

Adolfo S. Azcuna
(Associate Justice)

Toyota Camry,
2005 model

536,105.00

543,300.00

9,195.00

Toyota Grandia,
2002 model

117,300.00

145,000.00

27,700.00

2,399.90

2,500.00

100.10

Ruben T. Reyes
(Associate Justice)

Sony TV Set
Ma. Alicia

5,800.002

The COA attributed this underpayment to the use by the Property Division of the Supreme Court of
the wrong formula in computing the appraisal value of the purchased vehicles. According to the
COA, the Property Division erroneously appraised the subject motor vehicles by applying
Constitutional Fiscal Autonomy Group (CFAG) Joint Resolution No. 35 dated April 23, 1997 and its
guidelines, in compliance with the Resolution of the Court En Banc dated March 23, 2004 in A.M.
No. 03-12-01,3 when it should have applied the formula found in COA Memorandum No. 98-569A4 dated August 5, 1998.

Recommendations of the Office of Administrative Services In her Memorandum dated August 10,
2010, Atty. Candelaria recommended that the Court advise the COA to respect the in-house
computation based on the CFAG formula, noting that this was the first time that the COA questioned
the authority of the Court in using CFAG Joint Resolution No. 35 and its guidelines in the appraisal
and disposal of government property since these were issued in 1997. As a matter of fact, in two
previous instances involving two (2) retired Court of Appeals Associate Justices, 5 the COA upheld
the in-house appraisal of government property using the formula found in the CFAG guidelines. More
importantly, the Constitution itself grants the Judiciary fiscal autonomy in the handling of its budget
and resources. Full autonomy, among others,6 contemplates the guarantee of full flexibility in the
allocation and utilization of the Judiciarys resources, based on its own determination of what it
needs. The Court thus has the recognized authority to allocate and disburse such sums as may be
provided or required by law in the course of the discharge of its functions. 7 To allow the COA to
substitute the Courts policy in the disposal of its property would be tantamount to an encroachment
into this judicial prerogative.
OUR RULING
We find Atty. Candelarias recommendation to be well-taken.
The COAs authority to conduct post-audit examinations on constitutional bodies granted fiscal
autonomy is provided under Section 2(1), Article IX-D of the 1987 Constitution, which states:
Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit,
and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds
and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled corporations with original
charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have
been granted fiscal autonomy under this Constitution. emphasis ours
This authority, however, must be read not only in light of the Courts fiscal autonomy, but also in
relation with the constitutional provisions on judicial independence and the existing jurisprudence
and Court rulings on these matters.
Separation of Powers and Judicial Independence
In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as follows:
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.9
The concept of the independence of the three branches of government, on the other hand, extends
from the notion that the powers of government must be divided to avoid concentration of these
powers in any one branch; the division, it is hoped, would avoid any single branch from lording its
power over the other branches or the citizenry.10 To achieve this purpose, the divided power must be

wielded by co-equal branches of government that are equally capable of independent action in
exercising their respective mandates; lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another or others. 11
Under the Judiciarys unique circumstances, independence encompasses the idea that individual
judges can freely exercise their mandate to resolve justiciable disputes, while the judicial branch, as
a whole, should work in the discharge of its constitutional functions free of restraints and influence
from the other branches, save only for those imposed by the Constitution itself. 12 Thus, judicial
independence can be "broken down into two distinct concepts: decisional independence and
institutional independence."13 Decisional independence "refers to a judges ability to render decisions
free from political or popular influence based solely on the individual facts and applicable law." 14 On
the other hand, institutional independence "describes the separation of the judicial branch from the
executive and legislative branches of government."15 Simply put, institutional independence refers to
the "collective independence of the judiciary as a body." 16
In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet
Published in Malaya Dated September 18, 19, 20 and 21, 2007, 17 the Court delineated the
distinctions between the two concepts of judicial independence in the following manner:
One concept is individual judicial independence, which focuses on each particular judge and seeks
to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge
has this kind of independence when he can do his job without having to hear or at least without
having to take it seriously if he does hear criticisms of his personal morality and fitness for judicial
office. The second concept is institutional judicial independence. It focuses on the independence of
the judiciary as a branch of government and protects judges as a class.
A truly independent judiciary is possible only when both concepts of independence are preserved wherein public confidence in the competence and integrity of the judiciary is maintained, and the
public accepts the legitimacy of judicial authority. An erosion of this confidence threatens the
maintenance of an independent Third Estate. italics and emphases ours Recognizing the vital role
that the Judiciary plays in our system of government as the sole repository of judicial power, with the
power to determine whether any act of any branch or instrumentality of the government is attended
with grave abuse of discretion,18 no less than the Constitution provides a number of safeguards to
ensure that judicial independence is protected and maintained.
The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction,
as enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the
security of tenure of the members of the judiciary.19 The Constitution also mandates that the judiciary
shall enjoy fiscal autonomy,20 and grants the Supreme Court administrative supervision over all
courts and judicial personnel. Jurisprudence21 has characterized administrative supervision as
exclusive, noting that only the Supreme Court can oversee the judges and court personnel's
compliance with all laws, rules and regulations. No other branch of government may intrude into this
power, without running afoul of the doctrine of separation of powers.22
The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease
in their salary during their continuance in office,23 and ensures their security of tenure by providing
that "Members of the Supreme Court and judges of lower courts shall hold office during good
behavior until they reach the age of seventy years or become incapacitated to discharge the duties
of their office."24 With these guarantees, justices and judges can administer justice undeterred by any
fear of reprisals brought on by their judicial action. They can act inspired solely by their knowledge of
the law and by the dictates of their conscience, free from the corrupting influence of base or
unworthy motives.25

All of these constitutional provisions were put in place to strengthen judicial independence, not only
by clearly stating the Courts powers, but also by providing express limits on the power of the two
other branches of government to interfere with the Courts affairs.
Fiscal Autonomy
One of the most important aspects of judicial independence is the constitutional grant of fiscal
autonomy. Just as the Executive may not prevent a judge from discharging his or her judicial duty
(for example, by physically preventing a court from holding its hearings) and just as the Legislature
may not enact laws removing all jurisdiction from courts,26 the courts may not be obstructed from
their freedom to use or dispose of their funds for purposes germane to judicial functions. While, as a
general proposition, the authority of legislatures to control the purse in the first instance is
unquestioned, any form of interference by the Legislative or the Executive on the Judiciarys fiscal
autonomy amounts to an improper check on a co-equal branch of government. If the judicial branch
is to perform its primary function of adjudication, it must be able to command adequate resources for
that purpose. This authority to exercise (or to compel the exercise of) legislative power over the
national purse (which at first blush appears to be a violation of concepts of separateness and an
invasion of legislative autonomy) is necessary to maintain judicial independence 27 and is expressly
provided for by the Constitution through the grant of fiscal autonomy under Section 3, Article VIII.
This provision states:
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after approval,
shall be automatically and regularly released.
In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal autonomy in
the following manner:
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission on Elections, and the Office of the
Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess
and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for
compensation and pay plans of the government and allocate and disburse such sums as may be
provided by law or prescribed by them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100
typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress
without even informing us, the autonomy given by the Constitution becomes an empty and illusory
platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based. In the
interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders. We now agree with the
petitioners that this grant of autonomy should cease to be a meaningless provision. 29 (emphases
ours)

In this cited case, the Court set aside President Corazon Aquinos veto of particular provisions of the
General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions
of retired justices of the Supreme Court and the Court of Appeals, on the basis of the Judiciarys
constitutionally guaranteed independence and fiscal autonomy. The Court ruled:
In the case at bar, the veto of these specific provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to
fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds
appropriated from the expenditures of the judiciary, including the use of any savings from any
particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to
the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds
allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints.
The Chief Justice must be given a free hand on how to augment appropriations where augmentation
is needed.30
The Courts declarations in Bengzon make it clear that the grant of fiscal autonomy to the Judiciary is
more extensive than the mere automatic and regular release of its approved annual
appropriations;31 real fiscal autonomy covers the grant to the Judiciary of the authority to use and
dispose of its funds and properties at will, free from any outside control or interference.
Application to the Present Case
The Judiciarys fiscal autonomy is realized through the actions of the Chief Justice, as its head, and
of the Supreme Court En Banc, in the exercise of administrative control and supervision of the courts
and its personnel. As the Court En Bancs Resolution (dated March 23, 2004) in A.M. No. 03-12-01
reflects, the fiscal autonomy of the Judiciary serves as the basis in allowing the sale of the
Judiciarys properties to retiring Justices of the Supreme Court and the appellate courts:
WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon (G.R.
No. 103524, 15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate and
utilize (its) resources with the wisdom and dispatch that (its) needs require";
WHEREAS, the long-established tradition and practice of Justices or Members of appellate courts of
purchasing for sentimental reasons at retirement government properties they used during their
tenure has been recognized as a privilege enjoyed only by such government officials; and
WHEREAS, the exercise of such privilege needs regulation to the end that respect for sentiments
that a retiring Justice attaches to properties he or she officially used during his or her tenure should
be in consonance with the need for restraint in the utilization and disposition of government
resources.
By way of a long standing tradition, partly based on the intention to reward long and faithful service,
the sale to the retired Justices of specifically designated properties that they used during their
incumbency has been recognized both as a privilege and a benefit. This has become an established
practice within the Judiciary that even the COA has previously recognized. 32 The En Banc Resolution
also deems the grant of the privilege as a form of additional retirement benefit that the Court can
grant its officials and employees in the exercise of its power of administrative supervision. Under this
administrative authority, the Court has the power to administer the Judiciarys internal affairs, and
this includes the authority to handle and manage the retirement applications and entitlements of its
personnel as provided by law and by its own grants. 33

Thus, under the guarantees of the Judiciarys fiscal autonomy and its independence, the Chief
Justice and the Court En Banc determine and decide the who, what, where, when and how of the
privileges and benefits they extend to justices, judges, court officials and court personnel within the
parameters of the Courts granted power; they determine the terms, conditions and restrictions of the
grant as grantor.
In the context of the grant now in issue, the use of the formula provided in CFAG Joint Resolution
No. 35 is a part of the Courts exercise of its discretionary authority to determine the manner the
granted retirement privileges and benefits can be availed of. Any kind of interference on how these
retirement privileges and benefits are exercised and availed of, not only violates the fiscal autonomy
and independence of the Judiciary, but also encroaches upon the constitutional duty and privilege of
the Chief Justice and the Supreme Court En Banc to manage the Judiciarys own affairs.
As a final point, we add that this view finds full support in the Government Accounting and Auditing
Manual (GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which states:
Section 501. Authority or responsibility for property disposal/divestment. The full and sole authority
and responsibility for the divestment and disposal of property and other assets owned by the
national government agencies or instrumentalities, local government units and government-owned
and/or controlled corporations and their subsidiaries shall be lodged in the heads of the
departments, bureaus, and offices of the national government, the local government units and the
governing bodies or managing heads of government-owned or controlled corporations and their
subsidiaries conformably to their respective corporate charters or articles of incorporation, who shall
constitute the appropriate committee or body to undertake the same. italics supplied; emphases ours
This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the
full and sole authority and responsibility to divest and dispose of the properties and assets of the
Judiciary; as Head of Office, he determines the manner and the conditions of disposition, which in
this case relate to a benefit. As the usual practice of the Court, this authority is exercised by the
Chief Justice in consultation with the Court En Banc. However, whether exercised by the Chief
Justice or by the Supreme Court En Banc, the grant of such authority and discretion is unequivocal
and leaves no room for interpretations and insertions.
ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by the
Property Division, Office of `Administrative Services, of the properties purchased by the retired Chief
Justice and Associate Justices of the Supreme Court, based on CFAG Joint Resolution No. 35 dated
April 23, 1997, as directed under the Court Resolution dated March 23, 2004 in A.M. No. 03-12-01,
is CONFIRMED to be legal and valid. Let the Commission on Audit be accordingly advised of this
Resolution for its guidance.
SO ORDERED.
ANTONIO T. CARPIO
Senior Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

(On Leave)
JOSE CATRAL MENDOZA*
Associate Justice

MARIA LOURDES P.A. SERENO


Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate justice

Footnotes
*

On Leave.

Opinion No. 2010-035.

The amount of P5,800.00 allegedly underpaid by retired Associate Justice Ma. Alicia
Austria-Martinez in the purchase of an unspecified item was subsequently included via the
COAs letter dated July 6, 2011.
2

Resolution Adopting Guidelines on the Purchase of Judiciary Properties by Retiring


Members of the Supreme Court and Appellate Courts.
3

Revised Guidelines on Appraisal of Property other than Real Estate, Antique Property and
Works of Art.
4

LAO-N-2003-262 Request of Retired Justice Oswaldo D. Agcaoili, Court of Appeals, for


the reduction in the appraised value of one unit Mazda E2000 Power Van Model 1998 from
P192,000.00 to P52,000.00); and LAO-N-2004-296 Request of Retired Justice
Buenaventura J. Guerrero, Court of Appeals, for reconsideration of the value of one (1) unit
Honda Civic, which he intends to purchase from P362,999.98 to P330,299.12.
5

Section 3, Article VIII of the 1987 Constitution provides, "The Judiciary shall enjoy fiscal
autonomy."
6

See Bengzon v. Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133, 150.

63 Phil. 139 (1936).

Id. at 156-157.

CARL BAAR, SEPARATE BUT SUBSERVIENT: COURT BUDGETING IN THE AMERICAN


STATES 149-52 (1975), cited in Jeffrey Jackson, Judicial Independence, Adequate Court
Funding, and Inherent Judicial Powers, 52 Md. L. Rev. 217 (1993).
10

Jeffrey Jackson, Judicial Independence, Adequate Court Funding, and Inherent Judicial
Powers, 52 Md. L. Rev. 217 (1993).
11

Joseph M. Hood, Judicial Independence, 23 J. National Association Admin. L. Judges 137,


138 (2003) citing American Judicature Society, What is Judicial Independence? (November
27, 2002), at http://www.ajs.org/cji/cji_whatisji.asp (last visited April 14, 2003).
12

13

Ibid.

14

Ibid.

15

Ibid.

Gerard L. Chan, Lobbying the Judiciary: Public Opinion and Judicial Independence, 77 PLJ
73, 76 (2002).
16

17

A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 436.

18

CONSTITUTION, Article VIII, Section 1.

19

Id., Section 2.

20

Id., Section 3.

Garcia v. Miro, G.R. No. 167409, March 20, 2009, 582 SCRA 127; Ampong v. Civil Service
Commission, CSC-Regional Office No. 11, G.R. No. 167916, August 26, 2008, 563 SCRA
293; Judge Caoibes, Jr. v. Hon. Ombudsman, 413 Phil. 717 (2001); and Fuentes v. Office of
the Ombudsman-Mindanao, G.R. No. 124295, October 23, 2001, 368 SCRA 36.
21

Ampong v. Civil Service Commission, CSC-Regional Office No. 11, supra, at 303, citing
Maceda v. Vasquez, G.R. No. 102781, April 22, 1993, 221 SCRA 464.
22

23

CONSTITUTION, Article VIII, Section 10.

24

Id., Section 11.

25

See De La Llana, etc., et al. v. Alba, etc., et al., 198 Phil. 1, 64 (1982).

See e.g., United States v. Klein, 80 U.S. (13 Wall.) 128 (1872), cited in Jeffrey Jackson,
Judicial Independence, Adequate Court Funding, and Inherent Judicial Powers, 52 Md. L.
Rev. 217 (1993).
26

See Juvenile Director, 522 P.2d at 168; Commonwealth ex rel. Carroll v. Tate, 274 A.2d
193, 197 (Pa.) cert. denied, 402 U.S. 974 (1971), cited in Jeffrey Jackson, Judicial
Independence, Adequate Court Funding, and Inherent Judicial Powers, 52 Md. L. Rev. 217
(1993).
27

28

G.R. No. 103524, April 15, 1992, 208 SCRA 133.

29

Id. at 150-151.

30

Id. at 151.

Commission on Human Rights Employees Association v. Commission on Human Rights,


528 Phil. 658, 675 (2006).
31

32

Supra note 5.

Circular No. 36-97 (Subject: Reorganization And Strengthening of the Office of the Court
Administrator) pursuant to Presidential Decree No. 828, as amended by Presidential Decree
No. 842, created the Office of the Court Administrator to assist the Supreme Court in the
exercise of its power of administrative supervision over all courts as prescribed by the
Constitution.
33

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