DIGESTS OF LATEST SUPREME COURT DECISIONS IN POLITICAL LAW (2006 - 2009)

By:

ATTY. LARRY D. GACAYAN

Professor of Law UNIVERSITY OF THE CORDILLERAS COLLEGE OF LAW Baguio City LAW REVIEW, CONSTITUTIONAL LAW I, CONSTITUTIONAL LAW II ) June, 2010 Edition BAR REVIEWER (Political Law and Constitutional Law) CPRS BAR REVIEW CENTER Davao City, Cagayan de Oro City,Zamboanga City, and Iloilo City COSMOPOLITAN REVIEW CENTER (CRC) Baguio City Branch, UC, Baguio City POWERHAUS LAW REVIEW CENTER Baguio City, Santiago City, Tagbilaran City & Dipolog City EXCELLENT PRE-BAR REVIEW CENTER Baguio City, Naga City, General Santos City, and Tacloban City UNIVERSITY OF PANGASINAN PRE-BAR REVIEW CENTER Dagupan City

(POLITICAL

Requisites for a valid peoples initiative to amend the Constitution; distinctions between amendment and revision. RAUL L. LAMBINO and ERICO B. AUMENTADO , together with 6,327,952 registered voters vs. THE COMMISSION ON ELECTIONS, G.R. No. 174153, October 25, 2006, 505 SCRA 160 Carpio, J. Facts: Petitioners filed a Petition for Initiative and Referendum with the COMELEC to amend the 1987 Philippine Constitution, particularly Articles VI and VII to replace the present PresidentialBicameral system of government to Parliamentary-Unicameral system using Section 2, Art. XVII of the Constitution. Petitioners claim that their petition was signed by 6,327,952 million voters all over the country and the same constitutes over 12% of all the registered voters in the entire country and that more than 3% of the registered voters in every legislative district signed the same in accordance with Section 2, Art. XVII of the Constitution. The petition to change the Constitution involves sections 1-7 of Article VI; Sections 1-4 of Article VII and an Article XVII entitled Transitory Provisions. The petitioners prayed with the COMELEC that after due publication of their Petition, the COMELEC should submit the following proposition in a plebiscite for the voters ratification: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESIDENTIAL BICAMERAL TO A UNICAMERALPARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? The COMELEC dismissed the petition citing MIRIAM DEFENSOR SANTIAGO VS. COMELEC, 270 SCRA 106 where it was held that: RA 6735 intended to include the System of Initiative on Amendments to the Constitution, but is, unfortunately, Inadequate to cover that system under Section 2, Art. XVII of the Constitution. x x x . The foregoing brings us to the conclusion that RA 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by empowering the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act.

3 Considering the said dismissal, petitioners elevated the matter to the Supreme Court on Certiorari and Mandamus alleging rave abuse of discretion and to set aside the COMELEC Decision and to compel the latter to give due course to their initiative petition. THE ISSUES: 1. WHETHER THE LAMBINO GROUPS PETITION COMPLIES WITH SECTION 2, ARTICLE XVII OF THE CONSTITUTION ON AMENDMENTS TO THE CONSTITUTION THROUGH PEOPLES INITIATIVE; 2. WHETHER THE COURT SHOULD REVISIT ITS RULING IN DEFENSOR-SANTIAGO VS. COMELEC, DECLARING THAT RA NO. 6735 INCOMPLETE, INADEQUATE OR WANTING IN ESSENTIAL TERMS AND CONDITIONS TO IMPLEMENT THE INITIATIVE CLAUSE ON PROPOSALS TO AMEND THE CONSTITUTION; and 3. WHETHER THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING DUE COURSE TO THE LAMBINO GROUPS PETITION. H E L D: There is no merit to the petition. The Lambino group miserably failed to comply with the basic requirements of the Constitution for conducting a peoples initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Groups glaring failure to comply with the basic requirements of the Constitution. As such, there is likewise no grave abuse of discretion on the part of the COMELEC. Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a peoples initiative to propose amendments to the Constitution. This Section provides: Section 2. Amendments to this Constitution may likewise be DIRECTLY PROPOSED BY THE PEOPLE through initiative upon a petition of at least twelve per centum (12%) of the total number of registered voters of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. The deliberations of the Constitutional Convention vividly explain the meaning of the amendment directly proposed by the people through initiative upon a petition. Thus: MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. IS THE DRAFT OF THE PROPOSED CONSTITUTIONAL AMENDMENT READY TO BE SHOWN TO THE PEOPLE WHEN THEY ARE ASKED TO SIGN? MR. SUAREZ. That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign? Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President As it is envisioned, any Filipino can prepare that proposal and pass it around for signature. Clearly, the framers of the Constitution intended that the draft of the proposed constitutional amendment should be ready and shown to the people before they sign such proposal. The framers plainly stated that before they sign there is already a draft shown to them. The framers also envisioned that the people should sign on the proposal itself because the proponents must prepare the proposal and pass it around for signature. The essence of amendments directly proposed by the people through initiative upon a petition IS THAT THE ENTIRE PROPOSAL ON ITS FACE IS A PETITION BY THE PEOPLE. This means two (2) essential elements must be present: 1. The people must author and must sign the entire proposal. No agent or representative can sign for and on their behalf; 2. As an initiative upon a petition, THE PROPOSAL MUST BE EMBODIED IN A PETITION. These essential elements are present only if the full text of the proposed amendments is first shown to the people who will express their assent by signing such complete proposal in a petition. Thus, an amendment is DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON ONLY IF THE PEOPLE SIGN ON A PETITION THAT OCNTAINS THE FULL TEXT OF THE PROPOSED AMENDMENTS. The petitioners bear the burden of proving that they complied with the constitutional requirements in gathering the signatures---that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition a copy of the document containing the proposed amendments and as such, the people signed initiative petition without knowing the actual amendments proposed in the said initiative. Instead , the alleged 6.3 million people who signed the petition had to rely the representations of Atty. Lambino. Clearly, Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation. 2. A peoples initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress and a Constitutional Convention can propose both amendments and revisions to the Constitution. This is clear under Section 1 of Art. XVII of the Constitution. Where the intent and language of the Constitution under Section 2 of Art. XVIII clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. The two are distinguished as follows:

Revision is the alterations of the different portions of the entire document [Constitution]. It may result in the rewriting whether the whole constitution, or the greater portion of it, or perhaps some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the Constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. Amendment of the Constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. (Note: On November 20, 2006, the Supreme Court in its Resolution of the Motion for Reconsideration of Lambino, while it denied the Motion for Reconsideration for lack of merit insofar as they want the peoples initiative petition to be presented to the people in a plebiscite, it held that ten (10) members voted to declare that RA No. 6735 IS COMPLETE AND ADEQUATE and therefore, peoples initiative may be availed of by the people provided they shall comply with the strict requirements of Section 2, Art. XVII that the proposed amendments/s to the Constitution must be indicated in the petition itself signed by the people.) MIRIAM DEFENSOR-SANTIAGO, et al. Vs. COMELEC, 127325, March 19, 1997 & June 10, 1997 G.R. No.

RA 6735 intended to include the System of Initiative on Amendments to the Constitution, but is, unfortunately, Inadequate to cover that system. Section 2 Art. XVII is not self-executory and unless Congress provides for its implementation , it would remain in the cold niche of the Constitution. RA 6735 in all its 23 sections mentions the word Constitution only in section 2 and Section 3 as compared to the initiative on statutes and local legislation. The foregoing brings us to the conclusion that RA 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by empowering the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act. Power of Congress to conduct inquiries in aid of legislation; Public disclosure of government transactions

6 CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704 Sandoval-Gutierrez, J. The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),1[4] directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors. The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the PHC skyrocketed to P4.3 million, as compared to the previous years mere P106 thousand; WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months, over P73 million had been allegedly advanced to TCI without any accountability report given to PHC and PHILCOMSAT; WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of Philcomsat has precipitately released P265 million and granted P125 million loan to a relative of an executive committee member; to date there have been no payments given, subjecting the company to an estimated interest income loss of P11.25 million in 2004; WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of legislation, on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors. On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455.2[6]
1[4] 2[6]

Annex E of the Petition in G.R. No. 174318. Annex F of the Petition in G.R. No. 174318.

7 On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.3[7] At the same time, he invoked Section 4(b) of E.O. No. 1 earlier quoted.

On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum,4[8] approved by Senate President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No. 455. All were disregarded by the petitioners.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340.

Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier; and the PCGGs nominees Andal and Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the inquiries conducted by respondent Senate Committees are not in aid of legislation; third, the inquiries were conducted in the absence of duly published Senate Rules of Procedure Governing Inquiries in Aid of Legislation; and fourth, respondent Senate Committees are not vested with the power of contempt. In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the petitions involve political questions over which this Court has no jurisdiction; second, Section 4(b) has been repealed by the Constitution; third, respondent Senate Committees are vested with contempt power; fourth, Senates Rules of Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth, respondents have not violated any civil right of the individual petitioners, such as their (a) right to privacy; and (b) right against self-incrimination; and sixth, the inquiry does not constitute undue encroachment into justiciable controversies.

I S S U E:

3[7] 4[8]

Annex G of the Petition in G.R. No. 174318. Annex A of the Petition in G.R. No. 174318.

8 Is Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution? Is its implementation wherein the petitioners are exempt from appearing in investigations involving their transactions violates Section 28, Art. II of the Constitution?

Section 4(b) of E.O. No.1, which limits the power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding provides:

No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.

The Congress power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty,5[15] cited in Arnault v. Nazareno.6[16] In those earlier days, American courts considered the power of inquiry as inherent in the power to legislate.

In Arnault, the Supreme Court adhered to a similar theory. Citing McGrain, it recognized that the power of inquiry is an essential and appropriate auxiliary to the legislative function, thus: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislation body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it.

Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis.

Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: Public office is a public trust. Public officers and employees must
5[15] 6[16]

273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927). No. L- 3820, 87 Phil. 29 (1950).

9 at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers.7[24]

Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies. Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and non-accountability. In Presidential Commission on Good Government v. Pea,8[25] Justice Florentino P. Feliciano characterized as obiter the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:

The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability for anything done or omitted in the discharge of the task contemplated by this Order, the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x x x. x x x

It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this Court.

Said provision of EO No. 1 violates Section 28, Art. II of the Constitution which mandates that Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
7[24] 8[25]

De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2. No. L-77663, April 12, 1988, 159 SCRA 558.

10 Drug-testing requirement on all candidates before their certificates of candidacy will be admitted by the COMELEC, unconstitutional. SOCIAL JUSTICE SOCIETY (SJS) DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), ATTY. MANUEL J. LASERNA, JR DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AQUILINO Q. PIMENTEL, JR. COMMISSION ON ELECTIONS, G.R. No. 161658, November 3, 2008 vs.

Vsa.

VELASCO, JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of [1]candidates for public office, [2]students of secondary and tertiary schools, [3]officers and employees of public and private offices, and[4] persons charged before the prosecutors office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the schools student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices.Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the companys work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of

11 dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx (f) All persons charged before the prosecutors office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing.x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage.All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local

12 Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for reelection in the May 10, 2004 elections,9[1] filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Society v. Dangerous
9
[1]

Re-elected as senator in the 2004 elections.

13 Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a persons constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, 10[7] or alter or enlarge the Constitution.
10
[7]

Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.

14

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.11[8] In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.12[9] Congress inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.13[10] Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.14[11] The substantive constitutional limitations are chiefly found in the Bill of Rights15[12] and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.16[13] Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that [n]o person elected to any public office shall enter upon the
11 12

Cruz, CONSTITUTIONAL LAW 4 (2000). Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36 SCRA 228, 234. 13 [10] 50 Phil. 259, 309 (1927). 14 [11] J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 604 (1996). 15 [12] Id. 16 [13] See concurring opinion in Go v. Commision on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, 753.
[9]

[8]

15 duties of his office until he has undergone mandatory drug test. Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs. This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.17[14] The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are
17[14]

RA 9165, Sec. 2.

16 more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.18[15] The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure 19[16] under Sec. 2, Art. III20[17] of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),21[18] both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the schools athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the schools drug testing policy violated, inter alia, the Fourth Amendment22[19] of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a students privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held

18 19

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661. Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L20387, January 31, 1968, 22 SCRA 424, 444-445. 20 [17] Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. 21 [18] 536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS 224227 (2004). 22 [19] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[16]

[15]

17 that the policy constituted reasonable search under the Fourth 23[20] and 14th Amendments and declared the random drug-testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the schools custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and nondiscriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, 24[21] particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, [d]eterring drug use by our Nations schoolchildren is as important as enhancing efficient enforcement of the Nations laws against the importation of drugs; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the
23
[20] The Fourth Amendment is almost similar to Sec. 2, Art. III of the Constitution, except that the latter limited the determination of probable cause to a judge after an examination under oath of the complainant and his witnesses. Hence, pronouncements of the US Federal Supreme Court and State Appellate Court may be considered doctrinal in this jurisdiction, unless they are manifestly contrary to our Constitution. See Herrera, HANDBOOK ON ARREST, SEARCH AND SEIZURE 8 (2003). 24 [21] Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96.

18 entire student body and faculty.25[22] Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,26[23] has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.27[24] Petitioner Lasernas lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizens constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.28[25] The essence of privacy is the right to be left alone.29[26] In context, the right to privacy means the right to be free from unwarranted exploitation of ones person or from intrusion into ones private activities in such a way as to cause humiliation to a persons ordinary sensibilities. 30[27] And while there has been general agreement as to the basic function of the guarantee against unwarranted search, translation of the abstract prohibition against unreasonable searches and seizures into workable broad guidelines for the decision of particular cases is a difficult task, to borrow from C. Camara v. Municipal Court.31[28] Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the states exercise of police power.32[29] As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, reasonableness is the touchstone of the validity of a government search or intrusion.33[30] And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individuals privacy interest against the promotion of some compelling state interest. 34[31] In the criminal context,
25 26

Rollo (G.R. No. 158633), p. 204, respondents Consolidated Memorandum. Rollo (G.R. No. 157870), p. 10. 27 [24] Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. 28 [25] Rollo (G.R. No. 158633), p. 9. 29[26] Ople, supra note 16, at 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932]. 30 [27] 62 Am. Jur. 2d, Privacy, Sec. 1. 31 [28] 387 U.S. 523; cited in 2 Bernas, supra note 18, at 232. 32 [29] 62 Am. Jur. 2d, Privacy, Sec. 17. 33[30] Vernonia & Board of Education, supra notes 15 & 18. 34 [31] Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra.
[23]

[22]

19 reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employeesand students for that matterunder RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as swift and informal disciplinary procedures, the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search narrowly drawn or narrowly focused?35[32] The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to random drug test as contained in the companys work rules and regulations x x x for purposes of reducing the risk in the work place. For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employees privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.36[33] In addition, the IRR issued by the DOH provides that access to the drug results shall be on the need to know basis;37[34] that the drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the
35 36

Supra note 16, at 166 & 169. Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation of Drug Laboratories, a laboratory is required to use documented chain of custody procedures to maintain control and custody of specimens. 37 [34] DOH IRR Governing Licensing and Accreditation of Drug Laboratories, Sec. 7 [10.3] provides that the original copy of the test results form shall be given to the client/donor, copy furnished the DOH and the requesting agency.
[33]

[32]

20 confidentiality of the test results.38[35] Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.39[36] To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individuals privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investors dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.40[37] And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.41[38] Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as
38 39

Id., Sec. 7 [10.4]. Secs. 47 and 48 of RA 9165 charge the Department of Labor and Employment with the duty to develop and promote a national drug prevention program and the necessary guidelines in the work place, which shall include a mandatory drafting and adoption of policies to achieve a drug-free workplace. 40[37] CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND EMPLOYEES, Sec. 2. 41 [38] CONSTITUTION, Art. XI, Sec. 1.
[36]

[35]

21 contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the companys work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.42[39] In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. 43[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.
42 43
[39] [40]

Tatad, supra note 6, at 351. Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, CONST. LIM. 630 (8th

ed.).

22

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. Re-apportionment of a single legislative district to make it two (2) like Cagayan de Oro City. Must there be a plebiscite first before a law adding another legislative district to a city or province as a result of increase in its income and population is considered valid and enforceable? Is Section 10, Art. X of the Constitution applicable in the creation of additional legislative districts? ROGELIO BAGABUYO VS. COMELEC, G.R. No. 176970, December 8, 2008 Before us is the petition for certiorari, prohibition, and mandamus,44[1] with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC) from implementing Resolution No. 7837 on the ground that Republic Act No. 937145[2] the law that Resolution No. 7837 implements is unconstitutional. BACKGROUND FACTS On October 10, 2006, Cagayan de Oros then Congressman Constantino G. Jaraula filed and sponsored House Bill No. 5859: An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro.46[3] This law eventually became Republic Act (R.A.) No. 9371.47[4] It increased Cagayan de Oros legislative district from one to two. For the election of May 2007, Cagayan de Oros voters would be classified as belonging to either the first or the second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress as well as eight members of the Sangguniang Panglungsod. Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27, 2007.48[7] On 10 April 2008, the petitioner amended the petition to include the following as respondents: Executive Secretary Eduardo Ermita; the
44 [1] 45 [2] 46 47 48

Under Rule 65 of the Rules of Court. An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro. [3] Rollo, p. 214. [4] Id., p. 25. [7] Id., pp. 3-22.

23 Secretary of the Department of Budget and Management; the Chairman of the Commission on Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of Canvassers.49[8] In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds, the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the division or conversion of a local government unit. He prayed for the issuance of an order directing the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single legislative district for Cagayan de Oro. THE ISSUE 1) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or does it involve the division and conversion of a local government unit requiring plebiscite in accordance with Section 10, Art. X of the Constitution? HELD: The Plebiscite Requirement. The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local government unit, and does not merely provide for the Citys legislative apportionment. This argument essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of legislative districts and division of local government units. Legislative apportionment is defined by Blacks Law Dictionary as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body.50[17] It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts.51[18] Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.52[19] Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative apportionment under its Section 5 which provides: Sec. 5(1). (1) The House of Representatives shall be composed of not more than two hundred fifty members unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants,
49 [8]

50 [17] 51 52

Id., pp. 60-93 Blacks Law Dictionary, 5th Edition, p. 91. [18] Clapp, James E., Dictionary of Law (2000), p. 33. [19] Blacks Law Dictionary, supra note 17, p. 1137.

24 and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations. xxx (3) Each legislative district shall comprise, as far as practicable, continuous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. Separately from the legislative districts that legal apportionment or reapportionment speaks of, are the local government units (historically and generically referred to as municipal corporations) that the Constitution itself classified into provinces, cities, municipalities and barangays.53[20] In its strict and proper sense, a municipality has been defined as a body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof.54[21] The creation, division, merger, abolition or alteration of boundary of local government units, i.e., of provinces, cities, municipalities, and barangays, are covered by the Article on Local Government (Article X). Section 10 of this Article provides: No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political unit directly affected. Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment of legislative districts,55[22] and likewise acts on local government units by setting the standards for their creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing, merging, abolishing local government units and altering their boundaries through legislation. Other than this, not much commonality exists between the two provisions since they are inherently different although they interface and relate with one another. The concern that leaps from the text of Article VI, Section 5 is political representation and the means to make a legislative district sufficiently represented so that the people can be effectively heard. As above stated, the aim of legislative apportionment is to equalize population and voting power among districts.56[23]
53 [20] 54 [21] 55 [22] 56 [23]

CONSTITUTION, Art. X, Sec. 1. Martin, Public Corporations, Revised 1983 Edition, p. 5. Article VI, Section 5; Montejo v. COMELEC, 312 Phil. 492 (1995). Supra note 18.

25 Hence, emphasis is given to the number of people represented; the uniform and progressive ratio to be observed among the representative districts; and accessibility and commonality of interests in terms of each district being, as far as practicable, continuous, compact and adjacent territory. In terms of the people represented, every city with at least 250,000 people and every province (irrespective of population) is entitled to one representative. In this sense, legislative districts, on the one hand, and provinces and cities, on the other, relate and interface with each other. To ensure continued adherence to the required standards of apportionment, Section 5(4) specifically mandates reapportionment as soon as the given standards are met. In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly speaks of how local government units may be created, divided, merged, abolished, or its boundary substantially altered. Its concern is the commencement, the termination, and the modification of local government units corporate existence and territorial coverage; and it speaks of two specific standards that must be observed in implementing this concern, namely, the criteria established in the local government code and the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of income, population and land area are specified as verifiable indicators of viability and capacity to provide services.57[24] The division or merger of existing units must comply with the same requirements (since a new local government unit will come into being), provided that a division shall not reduce the income, population, or land area of the unit affected to less than the minimum requirement prescribed in the Code.58[25] A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit.59[26] In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. In Tobias v. Abalos,60[27] a case that arose from the division of the congressional district formerly covering San Juan and Mandaluyong into separate districts, we confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment. The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of its conversion into a highly urbanized city, while none was held for San Juan. In explaining why this happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by Article X, Section 10 the Local Government Code; the creation of a new legislative district only followed as a consequence. In other words, the apportionment alone and by itself did not call for a plebiscite, so that none was needed for San Juan where only a reapportionment took place.
57 [24] 58 [25]

Section 7, Local Government Code. CONSTITUTION, Art. X, Sec. 10.

59 [26]

SEC. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (Comelec) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.
G.R. No. 114783, December 8, 1994, 239 SCRA 106.

60 [27]

26

The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two provisions, the nature of the concepts they embody as heretofore discussed, and their areas of application. Formula in determining the party-list representatives Is the 20% ceiling mandatory? (Veterans vs. COMELEC Formula abandoned)

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT) versus -COMMISSION ON ELECTIONS , G.R. No. 179271, May 2009 CARPIO, J.: The Case Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency (BANAT) in a petition for certiorari and mandamus,61[1] assails the Resolution62[2] promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,63[3] assails NBC Resolution No. 07-6064[4] promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of the canvass of the party-list results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v.
61 62 63 64

27 COMELEC65[5] (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. The Facts The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.66[6] On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution, docketed as NBC No. 07041 (PL) before the NBC. BANAT filed its petition because [t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats. 67[7] There were no intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19 July 2007. On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 0760 in its entirety below: WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the PartyList System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections

65 66 67

28 i. Total party-list votes already canvassed/tabulated ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao) Maximum Total Party-List Votes 15,283,659 1,337,032

102,430 16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes; WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party, organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixtytwo (334,462) votes are as follows: RANK 1 PARTY/ORGANIZATION/ COALITION BUHAY 8 VOTES RECEIVED 1,163,21

29 2 3 4 5 6 7 8 9 10 11 12 13 14 BAYAN MUNA 0 CIBAC 0 GABRIELA 1 APEC 1 A TEACHER 6 AKBAYAN 2 ALAGAD 6 BUTIL 2 COOP-NATCO 9 BATAS 1 ANAK PAWIS 6 ARC 4 ABONO 6 WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to 337,04 338,19 376,03 386,36 390,02 405,05 423,07 470,87 476,03 538,97 610,45 760,26 972,73

30 PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: 1 Buhay Hayaan Yumabong 2 Bayan Muna 3 Citizens Battle Against Corruption 4 Gabriela Womens Party 5 Association of Philippine Electric Cooperatives 6 Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc. 7 Akbayan! Citizens Action Party 8 Alagad 9 Luzon Farmers Party 10 Cooperative-Natco Network Party 11 Anak Pawis 12 Alliance of Rural Concerns 13 Abono BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER

AKBAYAN ALAGAD BUTIL COOP-NATCCO ANAKPAWIS ARC ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the

31 Speaker of the House of Representatives of the Philippines. SO ORDERED.68[8] (Emphasis in the original) Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELECs interpretation of the Veterans formula as found in NBC Resolution No. 07-72: WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: Party-List 1 2 3 4 5 6 7 8 9 10
68

Projected total number of votes 1,178,747 977,476 755,964 621,718 622,489 492,369 462,674 423,190 409,298 412,920

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO

32 11 12 13 ANAKPAWIS ARC ABONO 370,165 375,846 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the first party in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus COMELEC; WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the first party, the correct formula as expressed in Veterans, is: Number of votes of first party Proportion of votes of first --------------------relative to total votes for Total votes for party-list system system

party party-list

wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats: Proportion of votes received by the first party Equal to or at least 6% Equal to or greater than 4% but less than 6% Less than 4% Additional seats Two (2) additional seats One (1) additional seat No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 -------= 0.07248 or 7.2%

33 16,261,369 which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows: No. of votes of concerned No. of additional Additional seats for = x seats allocated to a concerned party first party ------------------No. of votes of first party WHEREAS, applying the above formula, the results are as follows: Party List BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO ANAKPAWIS ARC ABONO Percentage 1.65 1.28 1.05 1.05 0.83 0.78 0.71 0.69 0.69 0.62 0.63 0.57 Additional Seat 1 1 1 1 0 0 0 0 0 0 0 0 party

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit:

34

Party List BUHAY BAYAN MUNA CIBAC GABRIELA APEC

Additional Seats 2 1 1 1 1

This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the partylist system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.69[9] Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows: This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads:
69

35

COMMENTS / OBSERVATIONS: Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of PartyList Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by Section 5, Article VI of the Constitution shall be proclaimed. 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how

36 many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for partylist representative prescribed by Section 12 of RA 7941 shall be followed. RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local Elections resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory Committee implement this resolution. SO ORDERED.70[10] BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. On 9 July 2007, Bayan Muna, Abono, and A Teacher asked
70

37 the COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.71[11] Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP),72[12] Anak Mindanao (AMIN),73[13] and An Waray.74[14] Per the certification75[15] by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008: Party-List 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 Buhay Bayan Muna CIBAC Gabriela APEC A Teacher Akbayan Alagad Butil Coop-Natco [sic] Anak Pawis ARC Abono AGAP AMIN No. of Seat(s) 3 2 2 2 2 1 1 1 1 1 1 1 1 1 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. Issues
71 72 73 74 75

38

BANAT brought the following issues before this Court: 1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and qualifier votes prescribed by the same Section 11(b) of RA 7941 constitutional? 4. How shall the party-list representatives be allocated?76[16] Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the allocation of seats to qualified party-list organizations as said rule: A. proportional B. particularly: Violates the constitutional principle of representation. Violates the provisions of RA 7941

1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the First Party violates the principle of proportional representation under RA 7941. 2. The use of two formulas in the allocation of additional seats, one for the First Party and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. under the First Party
76

The proportional relationships Rule are

39 different from those required under RA 7941; C. Violates the Four Inviolable Parameters of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.77[17] Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008: 1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? 4. How shall the party-list representative seats be allocated? 5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections?78[18] The Ruling of the Court
77 78

40 The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are: First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats; Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes.79[19] However, because the formula in Veterans has flaws in its mathematical interpretation of the term proportional representation, this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. Number of Party-List Representatives: The Formula Mandated by the Constitution Section 5, Article VI of the Constitution provides: Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.
79

41

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law. The House of Representatives shall be composed of district representatives and party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available to partylist representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus: Number of seats available to legislative districts .80 Number of seats available to party-list representatives

x. 20 =

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14 th Congress of the Philippines has 220 district representatives, there are 55 seats available to partylist representatives.

42 220 x. 20 = 55

.80 After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of additional seats under the Party-List System. Veterans produced the First Party Rule,80[20] and Justice Vicente V. Mendozas dissent in Veterans presented Germanys Niemeyer formula81[21] as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide: Section 11. Representatives. x x x Number of Party-List

In determining the allocation of seats for the second vote,82[22] the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total
80 81 82

43 number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied) In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats. The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows: (a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no partylist groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941.83[23] Forty-four (44) party-list seats will be awarded under BANATs first
83

44 interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: (a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system.84[24] BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats.85[25] Thirty-four (34) party-list seats will be awarded under BANATs second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up.86[26] We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives. Section 11(a) of R.A. No. 7941 prescribes the ranking of the
84 85 86

45 participating parties from the highest to the lowest based on the number of votes they garnered during the elections. Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections.87[27]

Rank

Party

Votes Garnered 1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058

Rank

Party

Votes Garnered 88,868 79,386 78,541 78,424 77,327 75,200 74,686 71,544 62,220 60,993 58,717 57,872 57,012 55,846 54,751 54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282 36,512 34,835 34,098

1 BUHAY 2 BAYAN MUNA 3 CIBAC 4 GABRIELA 5 APEC 6 A TEACHER 7 AKBAYAN 8 ALAGAD 9 COOPNATCCO 10 BUTIL 11 BATAS 12 ARC 13 ANAKPAWIS 14 ABONO 15 AMIN 16 AGAP 17 AN WARAY 18 YACAP 19 FPJPM 20 UNI-MAD 21 ABS 22 KAKUSA 23 KABATAAN 24 ABA-AKO 25 ALIF 26 SENIOR CITIZENS
87

48 KALAHI 49 APOI 50 BP 51 AHONBAYAN 52 BIGKIS 53 PMAP 54 AKAPIN 55 PBA 56 GRECON 57 BTM 58 A SMILE 59 NELFFI 60 AKSA 61 BAGO 62 BANDILA 63 AHON 64 ASAHAN MO 65 AGBIAG! 66 SPI 67 BAHANDI 68 ADD 69 AMANG 70 ABAY PARAK 71 BABAE KA 72 SB 73 ASAP

46 27 AT 28 VFP 29 ANAD 30 BANAT 31 ANG KASANGGA 32 BANTAY 33 ABAKADA 34 1-UTAK 35 TUCP 36 COCOFED 37 AGHAM 38 ANAK 39 ABANSE! PINAY 40 PM 41 AVE 42 SUARA 43 ASSALAM 44 DIWA 45 ANC 46 SANLAKAS 47 ABC 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 146,032 141,817 130,356 119,054 110,769 110,732 110,440 107,021 99,636 97,375 90,058 74 PEP 75 ABA ILONGGO 76 VENDORS 77 ADD-TRIBAL 78 ALMANA 79 AANGAT PILIPINO 80 AAPS 81 HAPI 82 AAWAS 83 SM 84 AG 85 AGING PINOY 86 APO 87 BIYAYANG BUKID 88 ATS 89 UMDJ 90 BUKLOD FILIPINA 91 LYPAD 92 AA-KASOSYO 93 KASAPI TOTAL KA 33,938 33,903 33,691 32,896 32,255 29,130 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161 9,445 8,915 8,471 8,406 6,221 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each. percenters. This clause guarantees a seat to the twoIn Table 2 below, we use the first 20 party-list candidates for illustration

purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates.

47 Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list.88[28] Votes Garnered Votes over Total Votes Guaranteed Garnered for Party-List, Seat in % 1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160
89[29]

Rank

Party 1 BUHAY 2 BAYAN MUNA 3 CIBAC 4 GABRIELA 5 APEC 6 A TEACHER 7 AKBAYAN 8 ALAGAD 9 COOP-NATCCO

7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54%

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 17 0 0 0

10 BUTIL 11 BATAS 12 ARC 13 ANAKPAWIS 14 ABONO 15 AMIN 16 AGAP 17 AN WARAY Total 18 YACAP 19 FPJPM 20 UNI-MAD

385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the twopercenters, are the party-list candidates that are entitled to one seat each, or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats. The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes. This is where petitioners and intervenors
88 89

48 problem with the formula in Veterans lies. Veterans interprets the clause in proportion to their total number of votes to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of the broadest possible representation of party, sectoral or group interests in the House of Representatives.90[30] In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.
90

49 Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as additional seats are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a partys share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified partylist candidate is entitled. Thus: Table 3. Distribution of Available Party-List Seats

Ran k

Party

Votes ( B) Garner Additio Applyi Guarante plus ng the ed nal ed Seat over Seats ( C), in three whole Total seat intege Votes cap Votes rs for Garner Party ed List, in (First % (Second Round) Round)

( B)
1 BUHAY 1,169,234

( A) 7.33%

( C)
1 2.79

( D)
3

( E)
N.A.

50 2 3 4 5 6 7 8 991[31] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36
91

BAYAN MUNA CIBAC GABRIELA APEC A Teacher AKBAYAN ALAGAD COOPNATCCO BUTIL BATAS ARC ANAKPAWI S ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED

979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920

6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34% 1.24% 1.23% 1.18% 1.11% 1.07% 1.06% 1.05% 1.03% 1.02% 0.98%

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

2.33 1.80 1.48 1.48 1.17 1.11 1.01 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

3 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A. N.A.

51 Tot al 17 55

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). Participation of Major Political Parties in Party-List Elections The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list elections. The deliberations of the Constitutional Commission clearly bear this out, thus: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. x x x We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. x x x. xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they

52 come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution. MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. would not qualify. No, Senator Taada

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang reserve. Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list

53 system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. UNIDO, pero sa sectoral lines. xxxx MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of Puwede po ang

54 them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. x x x 92[32] (Emphasis supplied) R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads: Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the partylist system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.
92

55 (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups.93[33] In defining a party that participates in party-list elections as either a political party or a sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:
93

56

Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the elections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. Under Section 9 of R.A. No. 7941, it is not necessary that the partylist organizations nominee wallow in poverty, destitution and infirmity94[34] as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors,95[35] that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x. The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from
94 95

57 participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. POWER OF THE COMELEC TO RESOLVE LEADERSHIP DISPUTES OF PARTY-LIST DR. HANS CHRISTIAN M. SENERIS VS. COMELEC, G.R. No. 178678, April 16, 2009 VELASCO, JR., J.: The Undisputed Facts In 1999, private respondent Robles was elected president and chairperson of BUHAY, a party-list group duly registered with COMELEC.96 [3] The constitution of BUHAY provides for a three-year term for all its party officers, without re-election.97[4] BUHAY participated in the 2001 and 2004 elections, with Robles as its president. All the required Manifestations of Desire to Participate in the said electoral exercises, including the Certificates of Nomination of representatives, carried the signature of Robles as president of BUHAY.98[5] On January 26, 2007, in connection with the May 2007 elections, BUHAY again filed a Manifestation of its Desire to Participate in the Party-List System of Representation.99[6] As in the past two elections, the manifestation to participate bore the signature of Robles as BUHAY president. On March 29, 2007, Robles signed and filed a Certificate of Nomination of BUHAYs nominees for the 2007 elections containing the following names: (i) Rene M. Velarde, (ii) Ma. Carissa Coscolluela, (iii) William Irwin C. Tieng, (iv) Melchor R. Monsod, and (v) Teresita B. Villarama. Earlier, however, or on March 27, 2007, petitioner Hans Christian
96 97 98 99

58 Seeres, holding himself up as acting president and secretary-general of BUHAY, also filed a Certificate of Nomination with the COMELEC, nominating: (i) himself, (ii) Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv) Victor Pablo C. Trinidad, and (v) Eduardo C. Solangon, Jr.100[7] Consequently, on April 17, 2007, Seeres filed with the COMELEC a Petition to Deny Due Course to Certificates of Nomination.101[8] In it, petitioner Seeres alleged that he was the acting president and secretarygeneral of BUHAY, having assumed that position since August 17, 2004 when Robles vacated the position. Pushing the point, Seeres would claim that the nominations made by Robles were, for lack of authority, null and void owing to the expiration of the latters term as party president. Furthermore, Seeres asserted that Robles was, under the Constitution, 102[9] disqualified from being an officer of any political party, the latter being the Acting Administrator of the Light Railway Transport Authority (LRTA), a government-controlled corporation. Robles, so Seeres would charge, was into a partisan political activity which civil service members, like the former, were enjoined from engaging in. On May 10, 2007, the National Council of BUHAY adopted a resolution103[10] expelling Seeres as party member for his act of submitting a Certificate of Nomination for the party. The resolution reads in part: WHEREAS, Hans Christian M. Seeres, without authority from the National Council, caused the filing of his Certificate of Nomination with the Comelec last 27 March 2007. WHEREAS, Hans Christian M. Seeres, again without authority from the National Council, listed in his Certificate of Nomination names of persons who are not even members of the Buhay party. WHEREAS, Hans Christian M. Seeres, knowing fully well that the National Council had previously approved the following as its official nominees, to wit x x x to the 2007 Party-List elections; and that Mr. Melquiades A. Robles was authorized to sign and submit the partys Certificate of Nomination with the Comelec; and, with evident premeditation to put the party to public ridicule and with scheming intention to create confusion, still proceeded with the filing of his unauthorized certificate of nomination even nomination persons who are not members of Buhay. WHEREAS, Hans Christian M. Seeres, in view of the foregoing, underwent Party Discipline process pursuant to Article VII of the Constitution and By-Laws of the Party.
100 101 102 103

59 xxxx WHEREAS, after a careful examination of the [evidence] on his case, the National Council found Hans Christian M. Seeres to have committed acts in violation of the constitution and by-laws of the party and decided to expel him as a member of the party. NOW THEREFORE, be it RESOLVED as it is hereby RESOLVED that the National Council has decided to expel Hans M. Seeres as a member of the party effective close of business hour of 10 May 2007. BE IT RESOLVED FURTHER, that all rights and privileges pertaining to the membership of Hans M. Seeres with the party are consequently cancelled. BE IT RESOLVED FURTHER, that the President and Chairman of the National Council of Buhay, Mr. Melquiades A. Robles, is hereby authorized to cause the necessary filing of whatever documents/letters before the House of Representatives and/or to any other entity/agency/person to remove/drop Mr. Seeres name in the roll of members in the said lower house. 104[11] Later developments saw Robles filing a petition praying for the recognition of Jose D. Villanueva as the new representative of BUHAY in the House of Representatives for the remaining term until June 30, 2007. 105[12] Attached to the petition was a copy of the expelling resolution adverted to. Additionally, Robles also filed on the same day an Urgent Motion to Declare Null and Void the Certificate of Nomination and Certificates of Acceptance filed by Hans Christian M. Seeres, Hermenegildo Dumlao, Antonio R. Bautista, Victor Pablo Trinidad and Eduardo Solangon, Jr.106[13] On July 9 and July 18, 2007, respectively, the COMELEC issued two resolutions proclaiming BUHAY as a winning party-list organization for the May 2007 elections entitled to three (3) House seats.107[14] This was followed by the issuance on July 19, 2007 by the en banc COMELEC of Resolution E.M. No. 07-043 recognizing and declaring Robles as the president of BUHAY and, as such, was the one duly authorized to sign documents in behalf of the party particularly the Manifestation to participate in the party-list system of representation and the Certification of Nomination of its nominees.108[15] Explaining its action, COMELEC stated

104 105 106 107 108

60 that since no party election was held to replace Robles as party president, then he was holding the position in a hold-over capacity.109[16] The COMELEC disposed of the partisan political activity issue with the terse observation that Seeres arguments on the applicability to Robles of the prohibition on partisan political activity were unconvincing.110[17] The dispositive portion of the COMELEC Resolution reads: WHEREFORE, premises considered, this Commission (En Banc) hereby recognizes Melquiades A. Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act for and in its behalf pursuant to its Constitution and By-Laws. SO ORDERED.111[18] On July 20, 2007, the first three (3) listed nominees of BUHAY for the May 2007 elections, as per the Certificate of Nomination filed by Robles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and William Irwin C. Tieng, took their oaths of office as BUHAY party-list representatives in the current Congress.112[19] Accordingly, on September 3, 2007, the COMELEC, sitting as National Board of Canvassers, issued a Certificate of Proclamation to BUHAY and its nominees as representatives to the House of Representatives.113[20] Aggrieved, petitioner filed the instant petition. The Issue Whether or not the COMELEC acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its challenged Resolution dated June 19, 2007, which declared respondent Robles as the duly authorized representative of BUHAY, and there is no appeal or any other plain, speedy or adequate remedy in the ordinary course of law except the instant petition. HELD: The petition should be dismissed for lack of merit. Petition for Certiorari Is an Improper Remedy A crucial matter in this recourse is whether the petition for certiorari filed by Seeres is the proper remedy.
109 110 111 112 113

61

A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the proceeding.114[21] It is the proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.115[22] For certiorari to prosper, however, there must be a showing that the COMELEC acted with grave abuse of discretion and that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. In the present case, a plain, speedy and adequate remedy in the ordinary course of law was available to Seeres. The 1987 Constitution cannot be more explicit in this regard. Its Article VI, Section 17 states: 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. x x x This constitutional provision is reiterated in Rule 14 of the 1991 Revised Rules of the Electoral Tribunal of the House of Representatives, to wit: RULE 14. Jurisdiction.The Tribunal shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives. In Lazatin v. House Electoral Tribunal, the Court elucidated on the import of the word sole in Art. VI, Sec. 17 of the Constitution, thus: The use of the word sole emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as intended to be as complete and unimpaired as if it had remained originally in the legislature. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as full, clear and complete. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution.116[23] Then came Rasul v. COMELEC and Aquino-Oreta, in which the Court again stressed that the word sole in Sec. 17, Art. VI of the 1987
114 115 116

62 Constitution and Sec. 250 of the Omnibus Election Code underscore the exclusivity of the Tribunals jurisdiction over election contests relating to its members.117[24] The House of Representatives Electoral Tribunals (HRETs) sole and exclusive jurisdiction over contests relative to the election, returns and qualifications of the members of the House of Representatives begins only after a candidate has become a member of the House of Representatives.118[25] Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELECs jurisdiction over elections relating to the election, returns, and qualifications ends, and the HRETs own jurisdiction begins.119[26] It is undisputed that the COMELEC, sitting as National Board of Canvassers, proclaimed BUHAY as a winning party-list organization for the May 14, 2007 elections, entitled to three (3) seats in the House of Representatives.120[27] The proclamation came in the form of two Resolutions dated July 9, 2007 and July 18, 2007,121[28] respectively. Said resolutions are official proclamations of COMELEC considering it is BUHAY that ran for election as party-list organization and not the BUHAY nominees. The following day, on July 19, 2007, the COMELEC issued the assailed resolution declaring Melquiades A. Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act in its behalf pursuant to its Constitution and By-Laws. COMELEC affirmed that his Certificate of Nomination was a valid one as it ruled that Robles is the President of Buhay Party-List and therefore duly authorized to sign documents in behalf of the party particularly the Manifestation to participate in the pary-list system of representation and the Certificate of Nomination of its nominees.122[29] The September 3, 2007 proclamation merely confirmed the challenged July 19, 2007 Resolution. The July 19, 2007 Resolution coupled with the July 9, 2007 and July 18, 2007 proclamations vested the Robles nominees the right to represent BUHAY as its sectoral representatives. Consequently, the first three (3) nominees in the Certificate of Nomination submitted by Robles then took their oaths of office before the Chief Justice on July 20, 2007 and have since then exercised their duties and functions as BUHAY Party-List representatives in the current Congress. Without a doubt, at the time Seeres filed this petition before this Court on July 23, 2007, the right of the nominees as party-list representatives had been recognized and declared in the July 19, 2007 Resolution and the nominees had taken their oath and already assumed their offices in the House
117 118 119 120 121 122

63 of Representatives. As such, the proper recourse would have been to file a petition for quo warranto before the HRET within ten (10) days from receipt of the July 19, 2007 Resolution and not a petition for certiorari before this Court.123[30] Since Seeres failed to file a petition for quo warranto before the HRET within 10 days from receipt of the July 19, 2007 Resolution declaring the validity of Robles Certificate of Nomination, said Resolution of the COMELEC has already become final and executory. Thus, this petition has now become moot and can be dismissed outright. And even if we entertain the instant special civil action, still, petitioners postulations are bereft of merit. Act of Nominating Is Not Partisan Political Activity Petitioner Seeres contends that Robles, acting as BUHAY President and nominating officer, as well as being the Administrator of the LRTA, was engaging in electioneering or partisan political campaign. He bases his argument on the Constitution, which prohibits any officer or employee in the civil service from engaging, directly or indirectly, in any electioneering or partisan political campaign.124[31] He also cites Sec. 4 of the Civil Service Law which provides that no officer or employee in the Civil Service x x x shall engage in any partisan political activity. Lastly, he mentions Sec. 26(i) of the Omnibus Election Code which makes it an election offense for any officer in the civil service to directly or indirectly x x x engage in any partisan political activity. This contention lacks basis and is far from being persuasive. The terms electioneering and partisan political activity have well-established meanings in the Omnibus Election Code, to wit: Section 79. x x x (b) The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
123 124

64

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, agreement, or coalition of parties shall not be considered as election campaign or partisan election activity. Public expression of opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forth coming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. (Emphasis supplied.) Guided by the above perspective, Robles act of submitting a nomination list for BUHAY cannot, without more, be considered electioneering or partisan political activity within the context of the Election Code. First of all, petitioner did not aver that Robles committed any of the five (5) acts defined in the aforequoted Sec. 79(b) of the Code, let alone adduce proof to show the fact of commission. Second, even if Robles performed any of the previously mentioned acts, Sec. 79 of the Code is nonetheless unequivocal that if the same is done only for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, agreement, or coalition of parties, it is not considered as a prohibited electioneering or partisan election activity. From this provision, one can conclude that as long as the acts embraced under Sec. 79 pertain to or are in connection with the nomination of a candidate by a party or organization, then such are treated as internal matters and cannot be considered as electioneering or partisan political activity. The twin acts of signing and filing a Certificate of Nomination are purely internal processes of the party or organization and are not designed to enable or ensure the victory of the candidate in the elections. The act of Robles of submitting the certificate nominating Velarde and others was merely in compliance with the COMELEC requirements for nomination of party-list representatives and, hence, cannot be treated as electioneering or partisan political activity proscribed under by Sec. 2(4) of Art. IX(B) of the Constitution for civil servants. Moreover, despite the fact that Robles is a nominating officer, as well as Chief of the LRTA, petitioner was unable to cite any legal provision that

65 prohibits his concurrent positions of LRTA President and acting president of a party-list organization or that bars him from nominating. Last but not least, the nomination of Velarde, Coscolluela, Tieng, Monsod, and Villarama to the 2007 party-list elections was, in the final analysis, an act of the National Council of BUHAY. Robles role in the nominating process was limited to signing, on behalf of BUHAY, and submitting the partys Certificate of Nomination to the COMELEC. 125[32] The act of nominating BUHAYs representatives was veritably a direct and official act of the National Council of BUHAY and not Robles. Be that as it may, it is irrelevant who among BUHAYs officials signs the Certificate of Nomination, as long as the signatory was so authorized by BUHAY. The alleged disqualification of Robles as nominating officer is indeed a non-issue and does not affect the act of the National Council of nominating Velarde and others. Hence, the Certificate of Nomination, albeit signed by Robles, is still the product of a valid and legal act of the National Council of BUHAY. Robles connection with LRTA could not really be considered as a factor invalidating the nomination process. Hold-Over Principle Applies Petitioner Seeres further maintains that at the time the Certificate of Nomination was submitted, Robles term as President of BUHAY had already expired, thus effectively nullifying the Certificate of Nomination and the nomination process. Again, petitioners contention is untenable. As a general rule, officers and directors of a corporation hold over after the expiration of their terms until such time as their successors are elected or appointed.126[33] Sec. 23 of the Corporation Code contains a provision to this effect, thus: Section 23. The board of directors or trustees.Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year until their successors are elected and qualified. The holdover doctrine has, to be sure, a purpose which is at once legal as it is practical. It accords validity to what would otherwise be deemed as dubious corporate acts and gives continuity to a corporate enterprise in its relation to outsiders . This is the analogical situation obtaining in the present case. The voting members of BUHAY duly elected Robles as party President in October 1999. And although his regular term as such President expired in October 2002 no election was held to replace him and the other original set of officers . Further, the constitution and by-laws of BUHAY do not expressly or impliedly prohibit a hold-over situation. As such, since no
125 126

66 successor was ever elected or qualified, Robles remained the President of BUHAY in a hold-over capacity. Authorities are almost unanimous that one who continues with the discharge of the functions of an office after the expiration of his or her legal termno successor having, in the meantime, been appointed or chosenis commonly regarded as a de facto officer, even where no provision is made by law for his holding over and there is nothing to indicate the contrary . By fiction of law, the acts of such de facto officer are considered valid and effective . So it must be for the acts of Robles while serving as a hold-over Buhay President. Among these acts was the submission of the nomination certificate for the May 14, 2007 elections. As a final consideration, it bears to state that petitioner is estopped from questioning the authority of Robles as President of BUHAY. As a principle of equity rooted on natural justice, the bar of estoppel precludes a person from going back on his own acts and representations to the prejudice of another whom he has led to rely upon them . Again, it cannot be denied that Robles, as BUHAY President, signed all manifestations of the partys desire to participate in the 2001 and 2004 elections, as well as all Certificates of Nomination . In fact, the corresponding certificate for the 2004 elections included petitioner as one of the nominees. During this time, Robles term as President had already expired, and yet, petitioner never questioned Robles authority to sign the Certificate of Nomination. As a matter of fact, petitioner even benefited from the nomination, because he earned a seat in the House of Representatives as a result of the partys success . Clearly, petitioner cannot now be heard to argue that Robles term as president of BUHAY has long since expired, and that his act of submitting the Certificate of Nomination and the manifestation to participate in the 2007 elections is null and void. He is already precluded from doing so. WHEREFORE, the petition is DISMISSED. Resolution E.M. No. 07-043 of the COMELEC dated July 19, 2007 is AFFIRMED. No costs. Natural born citizen as qualification of a member of the House of Representatives. ANTONIO BENGSON III VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO CRUZ, 357 SCRA 545 Rep. Act No. 2630 Sec. 1. Any person who had lost his Philippine Citizenship by rendering service to,

67 or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United states, acquired US citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC OF THE PHILIPPINES AND REGISTERING THE SAME WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE HE RESIDES OR LAST RESIDED IN THE PHILIPPINES. The said Oath of allegiance shall contain a renunciation of any other citizenship. Who takes the place of the winning candidate as a Member of the House of Representatives who was disqualified after he was proclaimed as such? OCAMPO VS. HOUSE ELECTORAL TRIBUNAL and MARIO CRESPO, a.k.a. MARK JIMENEZ, June 15, 2004 Facts: The petitioner and Mark Jimenez were candidates for Congressman of the 6 District of manila for the May 14, 2001 elections. Mark Jimenez won over the petitioner with 32,097 votes as against petitioners 31,329 votes.
th

Petitioner filed an electoral protest before the HRET based on the following grounds: 1] misreading of ballots; 2] falsification of election returns; 3]substitution of election returns; 4] use of marked, spurious fake and stray ballots; and 5] presence of ballots written by one or two persons. On March 6, 2003, the HRET issued its Decision in the case of ABANTE, ET AL. VS. MARI CRESPO, a.k.a. MARK JIMENEZ, et al., declaring Mark Jimenez ineligible for the Office of Representative of Sixth District of Manila for lack of residence in the District. Mark Jimenez filed a Motion for Reconsideration which was denied. As a result of said disqualification of Jimenez, the petitioner claimed that all the votes cast for the former should not be counted and since he garnered the second highest number of votes, he should be declared winner in the May 14, 2001 elections and be proclaimed the duly elected Congressman of the 6th District of manila. Issues: 1. Are the votes of Mark Jimenez stray votes and should not be counted?

68 2. Whether the petitioner as second places should be proclaimed winner since the winner was disqualified? Held: 1. There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered stray. This final judgment must be rendered BEFORE THE ELECTION. This was the ruling in the case of CODILLA VS. DE VENECIA. Hence, when a candidate has not been disqualified by final judgment during the election day he was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. The reason behind this is that the people voted for him bona fide and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. 2. The subsequent disqualification of a candidate who obtained the highest number of votes does not entitle the second placer to be declared the winner. The said principle was laid down as early as 1912 and reiterated in the cases of LABO VS. COMELEC, ABELLA VS. COMELEC and DOMINO VS. COMELEC. Jurisdiction of the Electoral Tribunals viz-a-viz the COMELEC to determine the qualifications of Members of Congress before and after proclamation. JOCELYN SY LIMKAICHONG VS. COMELEC, G.R. No. 178831-32, April 1, 2009 Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the jurisdiction of the House of Representatives Electoral Tribunal begins over election contests relating to his election, returns, and qualifications, and mere allegation as to the invalidity of her proclamation does not divest the Electoral Tribunal of its jurisdiction. At the core of these contentious consolidated petitions are: (1) the Joint Resolution127[1] of the Commission on Elections (COMELEC) Second Division dated May 17, 2007, disqualifying Jocelyn D. Sy Limkaichong (Limkaichong) from running as a congressional candidate for the First District of Negros Oriental; (2) the COMELEC En Banc Resolution128[2] dated June 29, 2007, affirming her disqualification; and (3) the COMELEC En Banc Resolution129[3] dated August 16, 2007, resolving that all pending incidents relating to her qualifications should now be determined by the House of Representatives Electoral Tribunal (HRET).

127[1] 128[2] 129[3]

Rollo (G.R. Nos. 178831-32), pp. 24-36. Id. at 53-66. Id. at 181-183.

69 The facts are uncontroverted. On March 26, 2007, Limkaichong filed with the COMELEC her Certificate of Candidacy130[4] (COC) for the position of Representative of the First District of Negros Oriental. In the following weeks, two (2) petitions for her disqualification were instituted before the COMELEC by concerned citizens coming from her locality. On April 4, 2007, Napoleon Camero, a registered voter of La Libertad, Negros Oriental, filed the petition for her disqualification on the ground that she lacked the citizenship requirement of a Member of the House of Representatives. The petition, which was docketed as SPA No. (PES) A07-006,131[5] alleged that she is not a natural-born Filipino because her parents were Chinese citizens at the time of her birth. On April 11, 2007, Renald F. Villando, also a registered voter of the same locality, filed the second petition on the same ground of citizenship, docketed as SPA (PES) No. A07007.132[6] He claimed that when Limkaichong was born, her parents were still Chinese citizens as the proceedings for the naturalization of Julio Ong Sy, her father, never attained finality due to procedural and substantial defects. Both petitions prayed for the cancellation of Limkaichong's COC and for the COMELEC to strike out her name from the list of qualified candidates for the Representative of the First District of Negros Oriental. In her separate Answers133[7] to the petitions, Limkaichong claimed that she is a natural-born Filipino since she was born to a naturalized Filipino father and a natural-born Filipino mother, who had reacquired her status as such due to her husband's naturalization. Thus, at the time of her birth on November 9, 1959, nineteen (19) days had already passed after her father took his Oath of Allegiance on October 21, 1959 and after he was issued a Certificate of Naturalization on the same day. She contended that the COMELEC should dismiss the petitions outright for lack of cause of action. Citing Salcedo II v. Commission on Elections, ] she averred that a petition filed before an election, questioning the qualification of a candidate, should be based on Section 78 in relation to Section 74 of the Omnibus Election Code (OEC and not under Sections 68 and 74 thereof in relation to Section 1 Rule 25 of the COMELEC Rules of Procedure and Section 5 paragraph C (3.a) of COMELEC Resolution No. 7800. She also contended that the petitions were dismissible on the ground that they were in the nature of a collateral attack on her and her fathers citizenships, in contravention of the well-established rule that attack on one's citizenship may only be made through a direct action for its nullity. The COMELEC consolidated the two (2) petitions and re-docketed them as SPA Nos. 07-247134[17] and 07-248,135[18] entitled IN THE MATTER OF THE PETITION TO DISQUALIFY JOCELYN SY LIMKAICHONG FROM HER CANDIDACY AS FIRST DISTRICT REPRESENTATIVE OF NEGROS ORIENTAL (herein referred to as the disqualification cases), which remained pending on May 14, 2007, when the National and Local Elections were conducted.

130[4] 131[5] 132[6] 133[7] 134[17] 135[18]

Id. at 74. Id. at 75-77. Id. at 82-87. Id. at 100-144. Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong, Respondent. Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong, Respondent.

70 After the casting, counting and canvassing of votes in the said elections, Limkaichong emerged as the winner with 65,708 votes136[19] or by a margin of 7,746 votes over another congressional candidate, Olivia Paras 137[20] (Paras), who obtained 57,962. On May 15, 2007, Paras filed with the COMELEC a Very Urgent Motion for Leave to Intervene and to Suspend the Proclamation of Jocelyn Sy Limkaichong as Winning Candidate of the First District of Negros Oriental.138[21] In a Joint Resolution139[22] dated May 17, 2007, the COMELEC Second Division granted the petitions in the disqualification cases, disqualified Limkaichong as a candidate for Representative of the First District of Negros Oriental, directed the Provincial Supervisor of the COMELEC to strike out her name from the list of eligible candidates, and for the Provincial Board of Canvassers (PBOC) to suspend her proclamation. The PBOC received the Joint Resolution of the COMELEC Second Division on the evening of May 17, 2007, and accordingly suspended the proclamation of Limkaichong.140[24] The following day, or on May 18, 2007, the COMELEC En Banc issued Resolution No. 8062141[25] adopting the policy-guidelines of not suspending the proclamation of winning candidates with pending disqualification cases which shall be without prejudice to the continuation of the hearing and resolution of the involved cases. On May 20, 2007, Limkaichong filed with the COMELEC a Motion for Reconsideration of the Joint Resolution of May 17, 2007 and Urgent Motion to Lift the Order Suspending Proclamation.142[26]

136[19] 137[20]

Rollo (G.R. Nos. 178831-32), p. 152. Rollo (G.R. Nos. 179132-33), p. 103. 138[21] Id. at 135-141. 139[22] Rollo (G.R. Nos. 178831-32), pp. 24-35. The per curiam Joint Resolution was unanimously signed by Commissioners Florentino A. Tuason, Jr. (ret.), Rene V. Sarmiento and Nicodemo T. Ferrer. 140[24] Rollo (G.R. Nos. 179132-33), pp. 168-169, 201. 141[25] Rollo (G.R. Nos. 178831-32), pp. 145-146. The resolution is entitled In the Matter of Adopting the Following Policy-Guidelines on: 1) the Proclamation of Winning Candidates with Pending Disqualification Cases; 2) Suspension of Canvassing and/or Proclamation; and 3) Transfer of Canvassing Venue, the pertinent portion of which is quoted as follows: The Commission, in upholding the sovereign will of the people and in the interest of justice and fair play, RESOLVED as it hereby RESOLVES, to adopt the following policyguidelines in connection with the May 14, 2007 National and Local Elections: 1) No suspension of proclamation of winning candidates with pending disqualification cases There shall be no suspension of proclamation of winning candidates with pending disqualification cases before or after elections, involving issues of citizenship, non-residency, not being a registered voter, nuisance candidate, and/or violation of the election laws under Section 68 of the Omnibus Election Code, Fair Elections Act and other related election laws. This policy however shall be without prejudice to the continuation of the hearing and resolution of the involved cases.
142[26]

Rollo (G.R. No. 179132-33), pp. 37-52

71 On May 22, 2007, Limkaichong filed another motion for the lifting of the directive suspending her proclamation, insisting that she should be proclaimed as the winner in the congressional race pursuant to COMELEC Resolution No. 8062.143[27] On same date, Villando, one of the petitioners in the disqualification cases, filed an Urgent Manifestation Clarifying COMELEC Resolution No. 8062 with Motion,144[28] praying that the COMELEC should not lift the suspension of Limkaichongs proclamation. On May 25, 2007, the PBOC, in compliance with COMELEC Resolution No. 8062, reconvened and proclaimed Limkaichong as the duly elected Member of the House of Representatives for the First District of Negros Oriental.145[29] Thereafter, or on May 30, 2007, Paras filed with the COMELEC a Petition to Nullify and/or Annul the Proclamation of Jocelyn Sy-Limkaichong as First District Representative of Negros Oriental in relation to the May 17, 2007 Joint Resolution of the COMELEC Second Division,146[30] stating, among others, that Limkaichong's proclamation violated the earlier order of the COMELEC Second Division suspending her proclamation. The petition, docketed as SPC No. 07-211, was dismissed by the COMELEC First Division,147[31] ratiocinating that the disqualification cases were not yet final when Limkaichong was proclaimed. Accordingly, her proclamation which was valid or legal, effectively divested the COMELEC of its jurisdiction over the cases. The COMELEC First Division explained its ruling in this wise: The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall be no suspension of proclamation of winning candidates with pending disqualification cases involving, among others, issues of citizenship. As the disqualification cases involving Limkaichong were still pending reconsideration by the en banc, the underlying policy which gave rise to the issuance of the Resolution: to respect the will of the Filipino electorate, applies to the suspension of proclamation of the winning congressional candidate for the First District of Negros Oriental. WHEREFORE, the instant petition is dismissed. SO ORDERED. (Emphasis ours) Dissatisfied, Paras moved for the reconsideration of the above Resolution.148
[32]

143[27] 144[28]

Id. at 147-149. Rollo (G.R. Nos. 179132-33), pp. 158-162. 145[29] Rollo (G.R. Nos. 178831-32), p. 152. 146[30] Rollo (G.R. No. 179132-33), pp. 165-192. 147[31] Id at 328-334. The Resolution was penned by the late Commissioner Romeo A. Brawner and concurred in by Commissioner Resurreccion Z. Borra (ret.). 148[32] Id. at 215-236. The COMELEC First Division denied Paras motion on January 28, 2008 through an Omnibus Order. (Rollo [G.R. Nos. 178831-32], pp. 463-467.)

72 Meanwhile, in a Resolution149[33] dated June 29, 2007, the COMELEC En Banc, in an equally divided vote of 3:3, denied Limkaichongs motion for reconsideration of the Joint Resolution of the COMELEC Second Division in the disqualification cases. On July 3, 2007, Limkaichong filed in the disqualification cases against her a Manifestation and Motion for Clarification and/or To Declare the Petitions as Dismissed in Accordance with Section 6, Rule 18 of the COMELEC Rules of Procedure.150[35] She contended that, with her proclamation, her having taken her oath of office and her assumption of the position, the COMELEC was divested of jurisdiction to hear the disqualification cases. She further contended that, following Section 6,151[36] Rule 18 of the COMELEC Rules of Procedure, the disqualification cases would have to be reheard, and if on rehearing, no decision would be reached, the action or proceedings should be dismissed, because the COMELEC En Banc was equally divided in opinion when it resolved her motion for reconsideration. On an even date, Paras wrote the House of Representatives informing it of the COMELEC En Banc Resolution dated June 29, 2007 upholding the Joint Resolution of the COMELEC Second Division dated May 17, 2007, which disqualified Limkaichong as a congressional candidate.152[37] In the interim, then Speaker of the House of Representatives Jose de Venecia, Jr. (De Venecia) allowed Limkaichong to officially assume the office as a Member of the House of Representatives on July 23, 2007, as shown in the Journal of the House of Representatives.153[38] Despite Limkaichongs repeated pleas for the resolution of her manifestation and motion for clarification,154[39] the COMELEC did not resolve the same. Hence, on August 1, 2007, she filed with this Court a Petition for Certiorari155[40] under Rule 65, in relation to Rule 64 of the 1997 Rules of Civil Procedure docketed as G.R. Nos. 178831-32 praying for the annulment of the May 17, 2007 Joint Resolution of the COMELEC Second Division and the June 29, 2007 Resolution of the COMELEC En Banc in the disqualification cases for having been issued with grave abuse of discretion amounting to lack of jurisdiction. She averred that since she was already
149[33]

Rollo (G.R. Nos. 178831-32), pp. 53-66. In the per curiam Resolution, then COMELEC Chairman Benjamin A. Abalos, Sr., Commissioners Rene V. Sarmiento and Nicodemo T. Ferrer voted for the denial of Limkaichongs motion. The late Commissioner Romeo A. Brawner (also a former Presiding Justice of the Court of Appeals) wrote a dissenting opinion, which was concurred with by retired Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr., to the effect that Limkaichongs motion should be dismissed by the COMELEC for lack of jurisdiction. 150[35] Id. at 159-163. 151[36] Section 6, Rule 18, COMELEC Rules of Procedure provides: SEC. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. 152[37] Rollo (G.R. Nos. 179132-33), pp. 213-214. 153[38] Id. at 238-256. 154[39] Rollo (G.R. Nos. 178831-32), pp. 166-171. On July 5, 2007, Limkaichong filed an Urgent Motion to Resolve the Manifestation and Motion for Clarification. On July 11, 2007, she filed a Second Motion to Resolve said manifestation and motion. 155[40] Id. at 3-20.

73 proclaimed on May 25, 2007 as Representative of the First District of Negros Oriental, had assumed office on June 30, 2007, and had started to perform her duties and functions as such, the COMELEC had lost its jurisdiction and it is now the HRET which has jurisdiction over any issue involving her qualifications for the said office. On August 16, 2007, the COMELEC En Banc ruled on Limkaichongs manifestation and motion for clarification,156[41] with the following disquisition: In view of the proclamation of Limkaichong and her subsequent assumption of office on June 30, 2007, this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal in accordance with the abovequoted provision of the Constitution. WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of Representatives should now be determined by the House of Representatives Electoral Tribunal. SO ORDERED. (Emphasis ours) On August 24, 2007, Louis Biraogo (Biraogo), as a citizen and a taxpayer, filed with the Court a Petition for Prohibition and Injunction with Preliminary Injunction and/or Temporary Restraining Order157[42] under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, docketed as G.R. No. 179120, seeking to enjoin and permanently prohibit: (a) De Venecia from allowing Limkaichong to sit in the House of Representatives and participate in all its official activities; and (b) Limkaichong from holding office as its Member.158[43] Meanwhile, on August 28, 2007, Paras has instituted before the Court a Petition for Quo Warranto, Prohibition and Mandamus with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction159[44] under Rule 65 of the 1997 Rules of Civil Procedure, docketed as G.R. Nos. 179132-33, seeking, among others, the ouster of Limkaichong from the House of Representatives on account of her disqualification and for the holding of special elections to fill the vacancy created by such.160[45] On even date, the COMELEC Second Division promulgated a Resolution161[46] denying Villando's motion to suspend the proclamation of Limkaichong, which denial was affirmed by the COMELEC En Banc in a Resolution162[47] dated February 1, 2008.
156[41] 157[42] 158[43] 159[44] 160[45] 161[46] 162[47]

Id. at 181-183. Rollo (G.R. No. 179120), pp. 3-21. Id. at 19-20. Rollo (G.R. Nos. 179132-33), pp. 3-70. Id. at 69-70. Rollo (G.R. Nos. 178831-32), pp. 468-470. Id. at 471-481.

74

On September 5, 2008, Villando also filed with this Court a Petition for Certiorari and Injunction with Preliminary Injunction and Temporary Restraining Order163[48] under Rule 65 of the 1997 Rules of Civil Procedure, docketed as G.R. Nos. 179240-41, contending, among others, that the COMELEC En Banc gravely abused its discretion in issuing the August 16, 2007 Resolution 164[49] because it still acted on Limchaikongs manifestation and motion for clarification, notwithstanding that the same was not set for hearing and considering that its June 29, 2007 Resolution had already become final and executory. As the four (4) petitions are interrelated, the Court resolved to consolidate them in its Resolutions dated September 4 and 11, 2007. The Court heard the parties in oral argument on August 26, 2008, during which the following issues were tackled: 1.Whether the proclamation of Limkaichong by the Provincial Board of Canvassers of Negros Oriental is valid; 2.Whether said proclamation divested the Commission on Elections of jurisdiction to resolve the issue of Limkaichong's citizenship; 3.Whether the House of Representatives Electoral Tribunal shall assume jurisdiction, in lieu of the COMELEC, over the issue of Limkaichong's citizenship; 4. Whether the COMELEC Second Division and the COMELEC En Banc correctly ruled that Limkaichong is disqualified from running as a Member of the House of Representatives on the ground that she is not a natural-born citizen; 5. Whether the COMELEC disqualification of Limkaichong is final and executory; and, 6. Whether the Speaker of the House of Representatives may be compelled to prohibit Limkaichong from assuming her duties as a Member of the House of Representatives. On same day, the Court required the parties to simultaneously file within twenty (20) days their respective memoranda, after which the petitions shall be deemed submitted for resolution, with or without the memoranda. Section 6, Article VI of the 1987 Philippine Constitution provides for the qualification of a Member of the House of Representatives, thus: Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five
163[48] 164[49]

Rollo (G.R. Nos. 179240-41), pp. 3-28. Supra note 41.

75 years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. When Limkaichong filed her COC, she stated therein that she is a naturalborn Filipino citizen. It was not true, according to the petitioners in the disqualification cases, because her father remained a Chinese citizen at the time of her birth. The COMELEC Second Division has sided with Camero and Villando, and disqualified Limkaichong to run as a congressional candidate in the First District of Negros Oriental for having failed to comply with the citizenship requirement. Accordingly, her proclamation was ordered suspended notwithstanding that she obtained the highest number of votes during the elections. Nonetheless, she was proclaimed by the PBOC pursuant to the policy guidelines of COMELEC En Banc Resolution No. 8062, and she has since assumed her position and performed her functions as a Member of the House of Representatives. I Whether Limkaichongs proclamation was valid. The proclamation of Limkaichong was valid. The COMELEC Second Division rendered its Joint Resolution dated May 17, 2007. On May 20, 2007, Limkaichong timely filed with the COMELEC En Banc her motion for reconsideration as well as for the lifting of the incorporated directive suspending her proclamation. The filing of the motion for reconsideration effectively suspended the execution of the May 17, 2007 Joint Resolution.165[50] Since the execution of the May 17, 2007 Joint Resolution was suspended, there was no impediment to the valid proclamation of Limkaichong as the winner. Section 2, Rule 19 of the COMELEC Rules of Procedure provides: Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution for implementation of the decision, resolution, order and ruling.

In G.R. Nos. 179132-33, Paras, however, maintained that Limkaichong was a Chinese citizen who was disqualified to run as a congressional candidate by way of a final judgment of the COMELEC. With that, her proclamation was questionable and the same was done in open defiance of the Joint Resolution dated May 17, 2007 of the COMELEC Second Division. She also stressed that Limkaichong's proclamation was procedurally defective, it appearing that one of the PBOC members was not present on May 25, 2007, and that it took place in a restaurant and not at the provincial capitol. Finally, she argued that Limkaichongs proclamation was void in accordance with the Court's pronouncement in the case of Codilla v. De Venecia.166[51]

165[50] 166[51]

COMELEC Rules of Procedure, Rule 19, Sec. 2. 442 Phil. 139 (2002).

76 The Office of the Solicitor General (OSG) filed its Comment on the petition of Paras, expressing its support for the position taken by the latter. A perusal of the arguments advanced by Paras and the OSG does not sway the Court to rule against the validity of Limkaichongs proclamation. No less than the COMELEC First Division has sustained the validity of her proclamation when it dismissed, by way of a Resolution dated June 29, 2007, the petition filed by Paras to nullify the proclamation. Not only that. The COMELEC First Division has also adopted Limkaichongs argument that following her valid proclamation, the COMELECs jurisdiction over the disqualification cases has ceased and that the same should be threshed out in the proper proceedings filed before the HRET. Notably, the dismissal of Paras petition was affirmed by the COMELEC in its Omnibus Order dated January 28, 2008. In addition, the validity of Limkaichong's proclamation is in accordance with COMELEC En Banc Resolution No. 8062. The disqualification cases filed against her remained pending as a result of her timely motion for reconsideration. Villando (in G.R. Nos. 179240-41), however, maintained that Resolution No. 8062 is invalid; hence, it could not be used as basis to validate Limkaichong's proclamation. He argued that it must be published since it is a policy-guideline in the exercise of the COMELECs rule-making power. As such, it cannot supersede the Joint Resolution of the Second Division which was rendered pursuant to the COMELECs quasijudicial power. His argument is specious. Resolution No. 8062 is not only a policyguideline. It is also an administrative interpretation of the two (2) provisions of the 1987 Constitution, namely: (i) Section 17,167[52] Article VI (ii); Section 2(2),168[53]

Section 17, Article VI, 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior justice in the Electoral Tribunal shall be its Chairman. 168[53] Section 2(2), Article IX-C, 1987 Constitution provides: Sec. 2. The Commission on Elections shall exercise the following powers and functions: xxxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective, regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

167[52]

77 Article IX-C; Section 6169[54] of R.A. 6646; and Sections 241170[55] and 243,171[56] Article XX of the OEC. As such, it does not have to comply with the due process requirement. The term administrative connotes or pertains to administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.172[57] This is to be distinguished from quasi-judicial function, a term which applies, among others, to the action or discretion of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature.173[58] Resolution No. 8062 is a valid exercise of the COMELECs constitutionally mandated power to promulgate its own rules of procedure relative to the conduct of the elections.174[59] In adopting such policy-guidelines for the May 14, 2007 National and Local Elections, the COMELEC had in mind the objective of upholding the sovereign will of the people and in the interest of justice and fair play. Accordingly, those candidates whose disqualification cases are still pending at the time of the elections, should they obtain the highest number of votes from the electorate, shall be proclaimed but that their proclamation shall be without prejudice to the continuation of the hearing and resolution of the involved cases. Whereas, in this case, the COMELEC Second Division having failed to act on the disqualification cases against
Section 6, RA 6646, otherwise known as An Act Introducing Additional Reforms in the Electoral System and for other Purposes, states: 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 guilt is strong. 170[55] Section 241 of the OEC provides: SEC. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns. 171[56] Section 243 of the OEC provides: SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers. (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code. (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When the substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. 172[57] Villarosa v. Commission on Elections and Atty. Dan Restor, 377 Phil. 497, 506 (1999), citing the Concurring Opinion of Justice Antonio in University of Nueva Caceres v. Martinez, 56 SCRA 148 (1974). 173[58] Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986). 174[59] Section 3, Article IX-C, 1987 Constitution provides: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
169[54]

78 Limkaichong until after the conduct of the elections, with her obtaining the highest number of votes from the electorate, her proclamation was properly effected by the PBOC pursuant to Resolution No. 8062. The Court has held in the case of Planas v. COMELEC,175[60] that at the time of the proclamation of Defensor, the respondent therein who garnered the highest number of votes, the Division Resolution invalidating his certificate of candidacy was not yet final. As such, his proclamation was valid or legal, as he had at that point in time remained qualified. Limkaichongs situation is no different from that of Defensor, the former having been disqualified by a Division Resolution on the basis of her not being a natural-born Filipino citizen. When she was proclaimed by the PBOC, she was the winner during the elections for obtaining the highest number of votes, and at that time, the Division Resolution disqualifying her has not yet became final as a result of the motion for reconsideration.

175[60]

G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537.

79 II Whether, upon Limkaichong's proclamation, the HRET, instead of the COMELEC, should assume jurisdiction over the disqualification cases. In her petition (G.R. Nos. 178831-32), Limkaichong argued that her proclamation on May 25, 2007 by the PBOC divested the COMELEC of its jurisdiction over all issues relating to her qualifications, and that jurisdiction now lies with the HRET. Biraogo, on the other hand, believed otherwise. He argued (in G.R. No. 179120) that the issue concerning Limkaichongs disqualification is still within the exclusive jurisdiction of the COMELEC En Banc to resolve because when Limkaichong was proclaimed on May 25, 2007, the matter was still pending resolution before the COMELEC En Banc. We do not agree. The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins.176[61] It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word sole in Section 17, Article VI of the Constitution and in Section 250177[62] of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members.178[63] Section 17, Article VI of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties
176[61]

Vinzons-Chato v. Commission on Elections, G.R. No. 172131, April 2, 2007, 520 SCRA 166, 179, citing Aggabao v. Commission on Elections, 449 SCRA 400, 404-405 (2005); Guerrero v. Commission on Elections, 391 Phil. 344, 352 (2000). 177[62] SEC. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. 178[63] Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul v. Commission on Elections, 371 Phil. 760, 766 (1999).

80 or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as amended, which states: RULE 14. Jurisdiction. - The Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the House of Representatives.

The COMELEC En Banc, in its Resolution dated August 16, 2007, had given paramount consideration to the two (2) aforementioned provisions when it stated that: In view of the proclamation of Limkaichong and her subsequent assumption of office on June 30, 2007, this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal in accordance with the above-quoted provision of the Constitution. WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of Representatives should now be determined by the House of Representatives Electoral Tribunal. SO ORDERED. (Emphasis supplied)

Worth citing also is the ratiocination of the COMELEC First Division when it dismissed the petition of Paras seeking the nullity of Limkaichong's proclamation, thus: The present situation is similar not to the factual circumstances of Codilla, which Paras invokes, but rather to that in Planas which adheres to the general rule giving jurisdiction to the House of Representatives Electoral Tribunal. As at the time of Limkaichong's proclamation, her disqualification was not yet final, her proclamation was valid or legal. This Commission no longer has jurisdiction over the case. This, notwithstanding the Second Division's directive suspending Limkaichong's proclamation. The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall be no suspension of

81 proclamation of winning candidates with pending disqualification cases, involving, among others, issues of citizenship. As the disqualification cases involving Limkaichong were still pending reconsideration by the En Banc, the underlying policy which gave rise to the issuance of the resolution: to respect the will of the Filipino electorate, applies to the suspension of proclamation of the winning Congressional candidate for the First District of Negros Oriental. WHEREFORE, the instant petition is DISMISSED. SO ORDERED. Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) steadfastly maintained that Limkaichongs proclamation was tainted with irregularity, which will effectively prevent the HRET from acquiring jurisdiction. The fact that the proclamation of the winning candidate, as in this case, was alleged to have been tainted with irregularity does not divest the HRET of its jurisdiction.179[64] The Court has shed light on this in the case of Vinzons-Chato,180[65] to the effect that: In the present case, it is not disputed that respondent Unico has already been proclaimed and taken his oath of office as a Member of the House of Representatives (Thirteenth Congress); hence, the COMELEC correctly ruled that it had already lost jurisdiction over petitioner Chato's petition. The issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity of respondent Unico's proclamation. These are matters that are best addressed to the sound judgment and discretion of the HRET. Significantly, the allegation that respondent Unico's proclamation is null and void does not divest the HRET of its jurisdiction: x x x [I]n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is selfevident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate. Further, for the Court to take cognizance of petitioner Chato's election protest against respondent Unico would be to usurp the constitutionally mandated functions of the HRET.
179[64] 180[65]

Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338. Supra note 61, at 180.

82

In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a members qualification to sit in the House of Representatives. The 1998 HRET Rules, as amended, provide for the manner of filing either an election protest or a petition for quo warranto against a Member of the House of Representatives, to wit: Rule 16. Election protest. -- A verified petition contesting the election of any Member of the House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten (10) days after the proclamation of the winner. The party filing the protest shall be designated as the protestant while the adverse party shall be known as the protestee. xxx Rule 17. Quo Warranto. -- A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner. The party filing the petition shall be designated as the petitioner while the adverse party shall be known as the respondent. xxx Rule 19. Periods Non-Extendible. -- The ten-day period mentioned in Rules 16 and 17 is jurisdictional and cannot be extended.

Accordingly, after the proclamation of the winning candidate in the congressional elections, the remedy of those who may assail ones eligibility/ineligibility/qualification/disqualification is to file before the HRET a petition for an election protest, or a petition for quo warranto, within the period provided by the HRET Rules. In Pangilinan v. Commission on Elections,181[66] we ruled that where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives. The PBOC proclaimed Limkaichong as the winner on May 25, 2007. Thus, petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) should have filed either an election protest or petition for quo warranto within ten days from May 25, 2007. But they did not. In fact, to date, no petition of protest or petition for quo
181[66]

G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44.

83 warranto has been filed with the HRET. Verily, the ten-day prescriptive period for initiating a contest against Limkaichong has long expired. However, the said ten-day prescriptive period under the 1998 HRET Rules does not apply to disqualification cases based on citizenship. Under the 1987 Constitution, Members of the House of Representatives must be natural-born citizens not only at the time of their election but during their entire tenure. Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time, the ten-day prescriptive period notwithstanding. In Frivaldo v. Commission on Elections,182[67] the Court held that: The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office as governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officers entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have the right to remain in office simply because the challenge to her title may not longer be made within ten days from her proclamation? x x x This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country alone, abjuring and renouncing all fealty to any other state. However, in assailing the citizenship of the father, the proper proceeding should be in accordance with Section 18 of Commonwealth Act No. 473 which provides that: Sec. 18. Cancellation of Naturalization Certificate Issued: Upon motion made in the proper proceedings by the Solicitor General or his representative, or by the proper provincial fiscal,
182[67]

G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied)

84 the competent judge may cancel the naturalization certificate issued and its registration in the Civil Register: 1. If it is shown that said naturalization certificate was obtained fraudulently or illegally; If the person naturalized shall, within five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same: If the petition was made on an invalid declaration of intention; If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Office of Private Education [now Bureau of Private Schools] of the Philippines, where Philippine history, government or civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree canceling the naturalization certificate shall be forwarded by the Clerk of Court of the Department of Interior [now Office of the President] and the Bureau of Justice [now Office of the Solicitor General]; If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the constitutional or legal provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. (Emphasis supplied)

2.

3. 4.

5.

Clearly, under law and jurisprudence, it is the State, through its representatives designated by statute, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizens descendant. III Whether the COMELEC Second Division and the COMELEC En Banc correctly disqualified Limkaichong on the ground that she is not a natural-born Filipino citizen. In resolving the disqualification cases, the COMELEC Second Division relied on the entries in the docket book of the OSG,183[69] the only remaining record of the naturalization proceedings,184[70] and ruled on the basis thereof that the naturalization proceedings of Julio Ong Sy, Limkaichongs father, in Special Case No. 1043, were
183[69] 184[70]

Rollo p. 97. Id. at 172 and 175.

85 null and void. The COMELEC Second Division adopted Villando and Cameros arguments that the OSG was deprived of its participation in the said case for it was not furnished copies of the following: (a) the July 9, 1957 Order of the Court of First Instance (CFI) granting the petition for naturalization; and (b) the September 21, 1959 Order of the CFI declaring Julio Ong Sy a Filipino citizen. Thus, when the latter took his oath of allegiance on October 21, 1959, it was exactly 30 days after his declaration as a naturalized Filipino, or one day short of the reglementary period required under Sections 11 and 12 of Commonwealth Act No. 473. Such defects were fatal to the naturalization proceedings of Julio Ong Sy and prevented the same from gaining finality. The COMELEC Second Division concluded that since Julio Ong Sy did not acquire Philippine citizenship through the said naturalization proceedings, it follows that Limkaichong remains a Chinese national and is disqualified to run as candidate and be elected as a Member of the House of Representatives. We cannot resolve the matter of Limkaichongs citizenship as the same should have been challenged in appropriate proceedings as earlier stated. IV Whether the COMELEC's disqualification of Limkaichong is final and executory. In resolving this issue, pertinent is the provision of Section 13(b), Rule 18 of the 1993 COMELEC Rules of Procedure: Sec. 13. Finality of Decisions or Resolutions. x x x (b) In Special Actions and Special Cases, a decision or resolution of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court.

In his Memorandum dated June 27, 2008, Biraogo stated that the Resolution of the COMELEC En Banc in the disqualification cases became final and executory after five (5) days from its promulgation and that the same was not restrained by this Court pursuant to Section 13(b), Rule 18 of the 1993 COMELEC Rules of Procedure. He averred that since Limkaichong received a copy of the COMELEC En Banc Resolution dated June 29, 2007 on July 3, 2007, she had until July 8, 2007 within which to obtain a restraining order from the Court to prevent the same from becoming final and executory. However, she did not do anything to that effect. Biraogo also averred that Limkaichong is guilty of forum shopping; hence, her petition must be dismissed by the Court. Instead of asking the Court for what Biraogo opined as a restraining order, Limkaichong filed with this Court, on August 1, 2007, her petition for certiorari

86 assailing the said COMELEC En Banc Resolution pursuant to Section 2,185[71] Rule 64, in relation to Rule 65, 1997 Rules of Civil Procedure, postulating that she had thirty (30) days from July 4, 2007 within which to file the petition, or until August 3, 2007. She cited Section 7, Article IX of the 1987 Constitution, which prescribes the power of this Court to review decisions of the COMELEC,186[72] thus: SEC. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

In his Comment on the petition, Villando prayed for the outright dismissal of Limkaichongs petition as (a) it was filed beyond the reglementary period; (b) Limkaichong engaged in prohibited forum shopping; and (c) Limkaichong admitted that the issues raised have become moot and academic. He also sought to declare Limkaichong in contempt of court for forum shopping. The COMELEC, through the OSG, also filed its Comment, praying for the denial of Limkaichong's petition and its dismissal for being moot, contending that: (a) the COMELEC En Banc Resolution dated August 16, 2007 has rendered the instant petition moot and academic; and (b) Limkaichong knowingly and intentionally engaged in forum shopping. The OSG argued that, without waiting for the resolution of her Motion for Clarification and two (2) successive motions to resolve said motions which are pending before the COMELEC En Banc, Limkaichong filed the present petition to question the Joint Resolution dated May 17, 2007 of the COMELEC Second Division, which issues were pending before the COMELEC En Banc. Her act of seeking relief from this Court while there were several other incidents pending before the COMELEC, the final resolution in either one of which will amount to res judicata in the other, clearly showed forum shopping on her part. In her Reply to the above Comments, Limkaichong countered that she did not engage in forum shopping, for had she waited for the COMELEC to rule on her manifestation and other motions, it would have resulted in the expiration of the reglementary period for filing a petition for certiorari before the Court.
185[71]

Section 2. Mode of review. - A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. 186[72] Soriano, Jr. v. Commission on Elections, G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 80, 107, citing Reyes v. RTC of Oriental Mindoro, 313 Phil. 727, 734 (1995).

87

The May 17, 2007 Joint Resolution of the COMELEC Second Division disqualifying Limkaichong and suspending her proclamation cannot yet be implemented considering that she timely filed a motion for reconsideration. Thus, pursuant to Section 13(c), Rule 18 and Section 2 Rule 19 of the COMELEC Rules of Procedure, the Joint Resolution has not yet attained finality for it to be implemented. Notably, the seeming impropriety of the Resolution of the COMELEC En Banc dated June 29, 2007 has since been remedied by the promulgation of its Resolution dated August 16, 2007, recognizing that it no longer has jurisdiction over the disqualification cases following the valid proclamation of Limkaichong and her assumption of office as a Member of the House of Representatives. V Whether the Speaker of the House of Representatives may be compelled to prohibit Limkaichong from assuming her duties as a Member of the House of Representatives. Biraogo's contention was that De Venecia187[73] should be stopped from entering Limkaichong's name in the Roll of Members of the House of Representatives because he has no power to allow an alien to sit and continue to sit therein as it would amount to an unlawful exercise of his legal authority. Moreover, Biraogo opposes Limkaichongs assumption of office in the House of Representatives since she is not qualified to sit therein, being a Chinese citizen and, thus, disqualified by virtue of a final and executory judgment of the COMELEC En Banc. He relied on the COMELEC En Banc Resolution dated June 29, 2007, which affirmed the COMELEC Second Division Joint Resolution dated May 17, 2007 disqualifying Limkaichong from holding public office. He contended that the said Resolution dated June 29, 2007 is already final and executory; hence, it should be respected pursuant to the principle of res judicata. De Venecia, on the other hand, argued that he should not be faulted for honoring the proclamation of Limkaichong, because it had the hallmarks of regularity, and he had no power to exclude any Member of the House of Representatives motu proprio. In their Comment on the petition, respondents De Venecia, et al., contended that the enrollment of a Member in the Roll of Members of the House of Representatives and his/her recognition as such becomes the ministerial duty of the Secretary General and the House of Representatives upon presentation by such Member of a valid Certificate of Proclamation and Oath of Office. Respondent Nograles, as De Venecia's, substitute, filed a Memorandum dated July 16, 2008 stating that under the circumstances, the House of Representatives, and its officials, are without recourse except to honor the validity of the proclamation of Limkaichong until the same is

187[73]

When Speaker Jose De Venecia, Jr. was replaced by Speaker Prospero Nograles, petitioner Biraogo filed with the Court a Respectful Manifestation with Motion to Replace Respondent Jose De Venecia, Jr. with Prospero C. Nograles, praying that the latter will replace the former as party-respondent in G.R. No. 179120, which the Court granted in its Resolution dated April 1, 2008.

88 canceled, revoked or nullified, and to continue to recognize her as the duly elected Representative of the First District of Negros Oriental until it is ordered by this Court, as it was in Codilla, to recognize somebody else. He went on to state that after assumption by the Member-elect, or having acquired a presumptively valid title to the office, the House of Representatives cannot, motu proprio, cancel, revoke, withdraw any recognition given to a sitting Member or to remove his name from its roll, as such would amount to a removal of such Member from his office without due process of law. Verily, it is only after a determination by the appropriate tribunal (as in this case, the HRET), pursuant to a final and executory order, that the Member does not have a right to the office (i.e., not being a duly elected Member), that the House of Representatives is directed to exclude the said Member. Their contentions are meritorious. The unseating of a Member of the House of Representatives should be exercised with great caution and after the proper proceedings for the ouster has been validly completed. For to arbitrarily unseat someone, who obtained the highest number of votes in the elections, and during the pendency of the proceedings determining ones qualification or disqualification, would amount to disenfranchising the electorate in whom sovereignty resides.188[74] WHEREFORE, premises considered, the petition in G.R. Nos. 178831-32 is GRANTED and the Joint Resolution of the COMELEC Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 is REVERSED and SET ASIDE. All the other petitions (G.R. Nos. 179120, 179132-33, 179240-41) are hereby DISMISSED. Congress must have a duly published Rules; otherwise, the Senate or the House of Representatives could not investigate in aid of legislation. VIRGILLO GARCILLANO VS. HOUSE OF REEPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION ET AL, December 23, 2008 As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement. Section 21, Article VI of the 1987 Constitution explicitly provides that [t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The requisite of publication of the rules is intended to satisfy the basic requirements of due process. 189[42] Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one.190[43] What constitutes publication is set forth in Article 2 of the Civil Code, which provides that [l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines.191[44]
188[74] 189[42] 190[43]

See Codilla v. De Venecia, 442 Phil. 139 (2002).

Bernas, The 1987 Constitution of the Philippines, A Commentary, 1996 ed., p. 679. Taada v. Tuvera, 220 Phil. 422, 432-433 (1985).

89 The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006.192[45] With respect to the present Senate of the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session. Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on Accountability of Public Officers and Investigations,193[46] we said: Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the duly published rules of procedure. We quote the OSGs explanation: The phrase duly published rules of procedure requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senates membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the following rationalization: The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to constitute a quorum to do business. Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators.194[47] The subject was explained with greater lucidity in our Resolution195[48] (On the Motion for Reconsideration) in the same case, viz.: On the nature of the Senate as a continuing body, this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is continuing, as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: MAY THE SENATE COMMITTEE ON FOREIGN RELATIONS CONDUCT INVESTIGATIONS IN AID OF LEGISLATION FOR AN ALLEGED
191[44]

As amended on June 18, 1987 by Executive Order No. 200 entitled 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. 192[45] Rollo (G.R. No. 179275), p. 179; Memorandum of Respondents-Intervenors, pp. 9-10. 193[46] G.R. No. 180643, March 25, 2008, 549 SCRA 77, 135-136. 194[47] Id. at 297-298. 195[48] Dated September 4, 2008.

90 ILLEGAL ACTS COMMITTED BY POLICE GENERALS IN MOSCOW, RUSSIA WHICH IS OUTSIDE THE PHILIPPINES? SPOUSES PNP DIRECTOR ELISEO DE LA PAZ & MARIA FE DE LA PAZ VS. SENATE COMMITTEE ON FOREIGN AFFAIRS, G.R. No. 184849, February 13, 2009 This is a Petition for Certiorari and Prohibition196[1] under Rule 65 of the Rules of Court filed on October 28, 2008 by petitioners-spouses General (Ret.) Eliseo D. dela Paz (Gen. Dela Paz) and Mrs. Maria Fe C. dela Paz (Mrs. Dela Paz) assailing, allegedly for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the orders of respondent Senate Foreign Relations Committee (respondent Committee), through its Chairperson, Senator Miriam Defensor-Santiago (Senator Santiago), (1) denying petitioners Challenge to Jurisdiction with Motion to Quash Subpoenae and (2) commanding respondent Senate Sergeant-at-Arms Jose Balajadia, Jr. (Balajadia) to immediately arrest petitioners during the Senate committee hearing last October 23, 2008. The petition thus prays that respondent Committee be enjoined from conducting its hearings involving petitioners, and to enjoin Balajadia from implementing the verbal arrest order against them. The antecedents are as follow On October 6, 2008, a Philippine delegation of eight (8) senior Philippine National Police (PNP) officers arrived in Moscow, Russia to attend the 77th General Assembly Session of the International Criminal Police Organization (ICPO)-INTERPOL in St. Petersburg from October 6-10, 2008. With the delegation was Gen. Dela Paz, then comptroller and special disbursing officer of the PNP. Gen. Dela Paz, however, was to retire from the PNP on October 9, 2008. On October 11, 2008, Gen. Dela Paz was apprehended by the local authorities at the Moscow airport departure area for failure to declare in written form the 105,000 euros [approximately P6,930,000.00] found in his luggage. In addition, he was also found to have in his possession 45,000 euros (roughly equivalent to P2,970,000.00). Petitioners were detained in Moscow for questioning. After a few days, Gen. Dela Paz and the PNP delegation were allowed to return to the Philippines, but the Russian government confiscated the euros. On October 21, 2008, Gen. Dela Paz arrived in Manila, a few days after Mrs. Dela Paz. Awaiting them were subpoenae earlier issued by respondent Committee for the investigation it was to conduct on the Moscow incident on October 23, 2008. On October 23, 2008, respondent Committee held its first hearing. Instead of attending the hearing, petitioners filed with respondent Committee a pleading denominated
196[1]

Rollo, pp. 3-21.

91 Challenge to Jurisdiction with Motion to Quash Subpoena.197[2] Senator Santiago emphatically defended respondent Committees jurisdiction and commanded Balajadia to arrest petitioners. Hence, this Petition. Petitioners argue that respondent Committee is devoid of any jurisdiction to investigate the Moscow incident as the matter does not involve state to state relations as provided in paragraph 12, Section 13, Rule 10 of the Senate Rules of Procedure (Senate Rules). They further claim that respondent Committee violated the same Senate Rules when it issued the warrant of arrest without the required signatures of the majority of the members of respondent Committee. They likewise assail the very same Senate Rules because the same were not published as required by the Constitution, and thus, cannot be used as the basis of any investigation involving them relative to the Moscow incident. Respondent Committee filed its Comment198[3] on January 22, 2009. The petition must inevitably fail. First. Section 16(3), Article VI of the Philippine Constitution states: Each House shall determine the rules of its proceedings. This provision has been traditionally construed as a grant of full discretionary authority to the Houses of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process.199[4] The challenge to the jurisdiction of the Senate Foreign Relations Committee, raised by petitioner in the case at bench, in effect, asks this Court to inquire into a matter that is within the full discretion of the Senate. The issue partakes of the nature of a political question that, in Taada v. Cuenco,200[5] was characterized as a question which, under the Constitution, is to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. Further, pursuant to this constitutional grant of virtually unrestricted authority to determine its own rules, the Senate is at liberty to alter or modify these rules at any time it may see fit, subject only to the imperatives of quorum, voting and publication. Thus, it is not for this Court to intervene in what is clearly a question of policy, an issue dependent upon the wisdom, not the legality, of the Senates action. Second. Even if it is within our power to inquire into the validity of the exercise of jurisdiction over the petitioners by the Senate Foreign Relations Committee, we are convinced that respondent Committee has acted within the proper sphere of its authority. Paragraph 12, Section 13, Rule 10 of the Senate Rules provides:
197[2] 198[3]

Id. at 28. Id. at 126-137. See Morrero v. Bocar, 37 O.G. 445. 100 Phil. 101 (1957).

199[4] 200[5]

92

12) Committee on Foreign Relations. Fifteen (15) members. All matters relating to the relations of the Philippines with other nations generally; diplomatic and consular services; the Association of Southeast Asian Nations; the United Nations Organization and its agencies; multi-lateral organizations, all international agreements, obligations and contracts; and overseas Filipinos. A reading of the above provision unmistakably shows that the investigation of the Moscow incident involving petitioners is well within the respondent Committees jurisdiction. The Moscow incident could create ripples in the relations between the Philippines and Russia. Gen. Dela Paz went to Moscow in an official capacity, as a member of the Philippine delegation to the INTERPOL Conference in St. Petersburg, carrying a huge amount of public money ostensibly to cover the expenses to be incurred by the delegation. For his failure to comply with immigration and currency laws, the Russian government confiscated the money in his possession and detained him and other members of the delegation in Moscow. Furthermore, the matter affects Philippine international obligations. We take judicial notice of the fact that the Philippines is a state-party to the United Nations Convention Against Corruption and the United Nations Convention Against Transnational Organized Crime. The two conventions contain provisions dealing with the movement of considerable foreign currency across borders. 201[6] The Moscow incident would reflect on our countrys compliance with the obligations required of state-parties under these conventions. Thus, the respondent Committee can properly inquire into this matter, particularly as to the source and purpose of the funds discovered in Moscow as this would involve the Philippines commitments under these conventions. Third. The Philippine Senate has decided that the legislative inquiry will be jointly conducted by the respondent Committee and the Senate Committee on Accountability of Public Officers and Investigations (Blue Ribbon Committee). Pursuant to paragraph 36, Section 13, Rule 10 of the Senate Rules, the Blue Ribbon Committee may conduct investigations on all matters relating to malfeasance, misfeasance
201[6]

Art. 14(2) of the United Nations Convention Against Corruption provides State parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross border transfer of substantial quantities of cash and appropriate negotiable instruments. The United Nations Convention Against Transnational Organized Crime provides Art. 7(1), Each State Party: (a) Shall institute a comprehensive domestic and regulatory and supervisory regime for banks and non-bank financial institutions and, where appropriate, other bodies particularly susceptible to moneylaundering, within its competence, in order to deter and detect all forms of money-laundering, which regime shall emphasize requirements for customer identification, record-keeping and the reporting of suspicious transactions; Art. 7(2): State Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments. (Underscoring supplied.)

93 and nonfeasance in office by officers and employees of the government, its branches, agencies, subdivisions and instrumentalities, and on any matter of public interest on its own initiative or brought to its attention by any of its members. It is, thus, beyond cavil that the Blue Ribbon Committee can investigate Gen. Dela Paz, a retired PNP general and member of the official PNP delegation to the INTERPOL Conference in Russia, who had with him millions which may have been sourced from public funds. Fourth. Subsequent to Senator Santiagos verbal command to Balajadia to arrest petitioners, the Philippine Senate issued a formal written Order 202[7] of arrest, signed by ten (10) senators, with the Senate President himself approving it, in accordance with the Senate Rules. Fifth. The Philippine Senate has already published its Rules of Procedure Governing Inquiries in Aid of Legislation in two newspapers of general circulation.203[8] Sixth. The arrest order issued against the petitioners has been rendered ineffectual. In the legislative inquiry held on November 15, 2008, jointly by the respondent Committee and the Senate Blue Ribbon Committee, Gen. Dela Paz voluntarily appeared and answered the questions propounded by the Committee members. Having submitted himself to the jurisdiction of the Senate Committees, there was no longer any necessity to implement the order of arrest. Furthermore, in the same hearing, Senator Santiago granted the motion of Gen. Dela Paz to dispense with the presence of Mrs. Dela Paz for humanitarian considerations.204[9] Consequently, the order for her arrest was effectively withdrawn. WHEREFORE, the petition is DISMISSED for lack of merit and for being moot and academic. Power of Congress to conduct investigation in aid of legislation; distinguish said power with its power to call department secretaries, etc., during question hour SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 CARPIO MORALES, J.: The Facts: In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled
202[7] 203[8] 204[9]

Rollo, pp. 138-139. Publication was made in the October 31, 2008 issues of the Manila Daily Bulletin and the Malaya. Rollo, p. 143.

94 Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled The Philippines as the Wire-Tapping Capital of the World; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled Clear and Present Danger; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called Gloriagate Scandal; and (5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines. Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter dated September 27, 2005, requested for its postponement due to a pressing operational situation that demands [his] utmost personal attention while some of the invited AFP officers are currently attending to other urgent operational matters. On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter205 dated September 27, 2005 respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited in order to afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation. Senate President Drilon, however, wrote206 Executive Secretary Ermita that the Senators are unable to accede to [his request] as it was sent belatedly and [a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week.
205 206

Annex B, id. at 52. Annex C, id. at 53.

95

Senate President Drilon likewise received on September 28, 2005 a letter from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured. On September 28, 2005, the President of the Philippines issued E.O. 464, ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES, which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows: SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002); 2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998). 3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

96

4. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); 5. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:

1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; 2. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; 3. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; 4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and 5. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied) A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished. Considering that no member of the executive department would want to appear in the above Senate investigations in aid of legislation by virtue of Proc. No. 464, the petitioners filed the present petitions to declare the same unconstitutional because the President abused her powers in issuing Executive Order No. 464. I S S U E S: 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress; 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation.

97 H E L D: Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Courts power of judicial review are present is in order. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.207 Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin208 and Valmonte v. Philippine Charity Sweepstakes Office,209 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.210 The Supreme Court, however, held that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives,211 this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. I The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied) The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,212 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate. Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held:
207 208 209 210 211 212

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133. G.R. No. 67752, April 10, 1989, 171 SCRA 657. G.R. No. 78716, September 22, 1987 (res). Rollo (G.R. No. 169777), p. 117. Supra note 39 at 136. 87 Phil. 29 (1950).

98

Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.213 . . . (Emphasis and underscoring supplied) That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is coextensive with the power to legislate.214 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation. Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations. As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. For one, as noted in Bengzon v. Senate Blue Ribbon Committee,215 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
213 214 215

Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927). Id. at 46. G.R. 89914, Nov. 20, 1991, 203 SCRA 767.

99

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is in aid of legislation under Section 21, the appearance is mandatory for the same reasons stated in Arnault.216 In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour is therefore CONSTITUTIONAL. It is different insofar as Sections 2 and 3 are concerned. Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are covered by the executive privilege.
216

Supra.

100 The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 Nature, Scope and Coverage of Executive Privilege , it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.217 (Emphasis and underscoring supplied) The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. 2 E.O 464 likewise violates the constitutional provision on the right to information on matters of public concern. There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
217

Supra note 82 at 189.

101 It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. 218 (Emphasis and underscoring supplied) The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. 3 The implementation of Proc. 464 before it was published in the Official Gazette as illegal. Due process thus requires that the people should have been apprised of this issuance before it was implemented. This is clear from the doctrine laid down in the case of TANADA VS. TUVERA. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES, are declared VOID. Investigation in aid of legislation; Executive Privilege ROMULO L. NERI VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, G.R. No. 180643, March 25, 2008

LEONARDO-DE CASTRO, J. (En Banc) THE FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the Peoples Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senate. At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate. Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among
218

G.R. No. 74930, February 13, 1989, 170 SCRA 256.

102 those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was out of town during the other dates. In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government. On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking executive privilege. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,219[6] (b) whether or not she directed him to prioritize it,220[7] and (c) whether or not she directed him to approve.221[8] Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on November 20, 2007. However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioners testimony on the ground of executive privilege. The pertinent portion of the letter reads: With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007. Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006). Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit:

a) Whether the President followed up the (NBN) project? b) Were you dictated to prioritize the ZTE? c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are
219[6] 220[7] 221[8]

Transcript of the September 26, 2007 Hearing of the respondent Committees, pp.91-92. Id., pp. 114-115. Id., pp. 276-277.

103 considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads: Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The Senate expects your explanation on or before 2 December 2007. On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus: It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with. In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of petitioners request that he be furnished in advance as to what else he needs to clarify so that he may adequately prepare for the hearing. On December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show cause Letter dated November 22, 2007. Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request for advance notice of the

104 matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. The said Order states: ORDER For failure to appear and testify in the Committees hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony. The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement. On the same date, petitioner moved for the reconsideration of the above Order.222[9] He insisted that he has not shown any contemptible conduct worthy of contempt and arrest. He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter through the issuance of declaration of contempt and arrest. In view of respondent Committees issuance of the contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order. On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment. Petitioner contends that respondent Committees show cause Letter and contempt Order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are candid discussions meant to
222
[9]

See Letter dated January 30, 2008.

105 explore options in making policy decisions. According to him, these discussions dwelt on the impact of the bribery scandal involving high government officials on the countrys diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines. He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita223[10] and United States v. Reynolds.224[11] Lastly, he argues that he is precluded from disclosing communications made to him in official confidence under Section 7225[12] of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24226[13] (e) of Rule 130 of the Rules of Court. Respondent Committees assert the contrary. They argue that (1) petitioners testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioners arrest; and (4) petitioner has not come to court with clean hands. I S S U E S: 1. What communications between the President and petitioner Neri are covered by the principle of executive privilege? 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the Peoples Republic of China? 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving
223 224

488 SCRA 1 (2006). 345 U.S. 1 (1953). 225[12] Section 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x (c) Disclosure and/or misuse of confidential information. Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. 226[13] SEC. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases. (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure.
[11]

[10]

106 high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art. II (Full public disclosure of all transactions involving public interest) Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust) Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2. What is the proper procedure to be followed in invoking executive privilege? 3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for noncompliance with the subpoena? H E L D: At the core of this controversy are the two (2) crucial queries, to wit: First, are the communications elicited by the subject three (3) questions covered by executive privilege? And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order? There is merit in the petition. At the outset, a glimpse at the landmark case of Senate v. Ermita227[18] becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons
227
[18]

Supra.

107 appearing in or affected by such inquiries shall be respected. SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function.228[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different. This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Courts pronouncement in Senate v. Ermita229[20] is clear: When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is in aid of legislation under Section 21, the appearance is mandatory for the same reasons stated in Arnault. I The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege We start with the basic premises where the parties have conceded.
228 229
[19] [20]

Ibid. Ibid.

108

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.230[21] Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.231[22] This directs us to the consideration of the question -- is there a recognized claim of executive privilege despite the revocation of E.O. 464? A- There is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464 At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act232[23] and the Federal Advisory Committee Act,233[24] the Philippines has retained its constitutional origination, occasionally interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermitas Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,234[25] and Chavez v. PEA.235[26] There was never a mention of E.O. 464. While these cases, especially Senate v. Ermita,236[27] have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.237[28] In United States v.
230 231 232[23] 233 234[25] 235 236[27] 237
[26] [24] [21] [22]

Arnault v. Nazareno, 87 Phil 32 (1950) Senate v. Ermita, p. 58. 5 U.S. C. 552 51 U.S. C. app. 433 Phil. 506 (2002). G.R. No. 130716, December 9, 1998, (360 SCRA 132 ). Supra. [28] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at p. 2.

109 Nixon,238[29] the U.S. Court recognized a great public interest in preserving the confidentiality of conversations that take place in the Presidents performance of his official duties. It thus considered presidential communications as presumptively privileged. Apparently, the presumption is founded on the Presidents generalized interest in confidentiality. The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide the President and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. In In Re: Sealed Case,239[30] the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. The latter includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the Presidents unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones240[31] As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Case confines the privilege only to White House Staff that has operational proximity to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as quintessential and non-delegable Presidential power, such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc. 241
[32]

Majority of the above jurisprudence have found their way in our

238[29] 239[30]

418 U.S. 683. In Re: Sealed Case No. 96-3124, June 17, 1997. 240[31] Id. 241[32] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at pp. 18-19.

110 jurisdiction. In Chavez v. PCGG242[38], this Court held that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters. In Chavez v. PEA,243[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,244[40] appointing,245[41] pardoning,246[42] and diplomatic247[43] powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1) 2) The protected communication must relate to a quintessential and non-delegable presidential power. The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority.248[44]

3)

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions fall under conversation and correspondence between the President and public officials necessary in her executive and policy decision-making process and, that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign
242 243[39] 244 245
[40] [41] [38]

360 Phil. 133 (1998). Supra.

Section 18, Article VII. Section 16, Article VII. 246 [42] Section 19, Article VII. 247 [43] Section 20 and 21, Article VII. 248[44] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and Recent Developments, supra..

111 relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 249[45] Second, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. The third element deserves a lengthy discussion. United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: [N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The foregoing is consistent with the earlier case of Nixon v. Sirica,250 where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government in the manner that preserves the essential functions of each Branch.251[47] Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted.
[46]

249[45]

Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p.
[46]

903.
250 251[47]

159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973). U.S. v. Nixon, 418 U.S. 683 (1974)

112 Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon252[48] that demonstrated, specific need for evidence in pending criminal trial outweighs the Presidents generalized interest in confidentiality. However, the present cases distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to limit the scope of its decision. It stressed that it is not concerned here with the balance between the Presidents generalized interest in confidentiality x x x and congressional demands for information. Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets. Respondent Committees further contend that the grant of petitioners claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.253[50] We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege. The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,254[51] Article 229255[52] of the
252 253
[48] [50]

Supra. Citing Section 7, Article 3 of the Constitution.

113 Revised Penal Code, Section 3 (k)256[53] of R.A. No. 3019, and Section 24(e)257[54] of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential258[55] and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the peoples right to public information. The former cannot claim that every legislative inquiry is an exercise of the peoples right to information. The distinction between such rights is laid down in Senate v. Ermita: There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from
254[51]

Section 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x ( c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. 255[52] Article 229. Revelation of secrets by an officer. Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos shall be imposed. 256 [53] Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. 257[54] Sec. 24. Disqualification by reason of privileged communications. The following persons cannot testify as to matters learned in confidence in the following case: x x x (a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. 258[55] In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as confidential such as information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused. It also stated that presidential conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. Such information cannot be pried-open by a co-equal branch of government.

114 government officials. These powers belong only to Congress, not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases. B- The Claim of Executive Privilege is Properly Invoked We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter. 259[56] A formal and proper claim of executive privilege requires a precise and certain reason for preserving their confidentiality.260[57] The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Obviously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient. With regard to the existence of precise and certain reason, we find the grounds relied upon by Executive Secretary Ermita specific enough so as not to leave respondent Committees in the dark on how the requested information could be classified as privileged. The case of Senate v. Ermita only requires that an allegation be made whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc. The particular ground must only be specified. The enumeration is not even intended to be comprehensive.261[58] The following statement of grounds satisfies the requirement:
259 260 261[58]
[56] [57]

United States v. Reynolds, supra.. Unites States v. Article of Drug, 43 F.R.D. at 190. Senate v. Ermita, supra., p. 63.

115 The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. At any rate, as held further in Senate v. Ermita, 262[59] the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department. II Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautistas letter, stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he be furnished in advance copies of the questions. Without responding to his request for advance list of questions, respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari. Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons. First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. Second, respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the possible needed statute which prompted the need for the inquiry, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. Compliance with this requirement is
262
[59]

Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L. R. 2d 382

(1953).

116 imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioners repeated demands, respondent Committees did not send him an advance list of questions. Third, a reading of the transcript of respondent Committees January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee was present during the deliberation. 263[61] Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members. Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the duly published rules of procedure. We quote the OSGs explanation: The phrase duly published rules of procedure requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senates membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. And fifth, respondent Committees issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before
263[61]

Trancript of the January 30, 2008 proceedings, p. 29.

117 respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as unsatisfactory. Undoubtedly, respondent Committees actions constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The same quality afflicted their conduct when they (a) disregarded petitioners motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioners repeated request for an advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege. Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication.264[63] Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the government. In this present crusade to search for truth, we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Courts mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law. The respondents-Committees were therefore stopped from calling the petitioner and ask the three(3) questions mentioned above in connection with his conversations with the President being covered by the executive privilege rule. Power of Congress to conduct inquiries in aid of legislation; Right to Privacy; Public disclosure of government transactions; right to information on matters of public concern; accountability of public officers; and right against self-incrimination;
264
[63]

Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA 519.

118

CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J. The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),265[4] directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455.266[6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.267[7] At the same time, he invoked Section 4(b) of E.O. No. 1 earlier quoted.

Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order268[13] directing Major General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the Committees members.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.

265[4] 266[6] 267[7] 268[13]

Annex E of the Petition in G.R. No. 174318. Annex F of the Petition in G.R. No. 174318. Annex G of the Petition in G.R. No. 174318. Annex D of the petition in G.R. No. 174318.

119 Hence, this petition.

I S S U E:

Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of Chairman Sabio and his Commissioners that their refusal to appear before respondent Senate Committees is justified. Ranged against it is Article VI, Section 21 of the 1987 Constitution granting respondent Senate Committees the power of legislative inquiry. It reads:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.

The Congress power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty,269[15] cited in Arnault v. Nazareno.270[16] In those earlier days, American courts considered the power of inquiry as inherent in the power to legislate.

In Arnault, the Supreme Court adhered to a similar theory. Citing McGrain, it recognized that the power of inquiry is an essential and appropriate auxiliary to the legislative function, thus:

269[15] 270[16]

273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927). No. L- 3820, 87 Phil. 29 (1950).

120 Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislation body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it.

Dispelling any doubt as to the Philippine Congress power of inquiry, provisions on such power made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution.271[18] Then came the 1987 Constitution incorporating the present Article VI, Section 12. What was therefore implicit under the 1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions.272[19]

Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of any of its committee. This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the mechanisms which the Houses can take in order to effectively perform its investigative function are also available to the committees.273[20]

It can be said that the Congress power of inquiry has gained more solid existence and expansive construal. The Courts high regard to such power is rendered more evident in Senate v. Ermita,274[21] where it categorically ruled that the power of inquiry is broad enough to cover officials of the executive branch. Verily, the Court reinforced the doctrine in Arnault that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation and that the power of inquiry is co-extensive with the power to legislate.

Considering these jurisprudential instructions, Section 4(b) is directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress power of inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress power of inquiry, being broad, encompasses everything that concerns the
271[18] 272[19] 273[20] 274[21]

Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22. Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.737. Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.739. G.R. No. 169777, April 20, 2006.

121 administration of existing laws as well as proposed or possibly needed statutes. 275[22] It even extends to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish.276[23] PCGG belongs to this class.

Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis.

Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers.277[24]

Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies. Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and non-accountability. In Presidential Commission on Good Government v. Pea,278[25] Justice Florentino P. Feliciano characterized as obiter the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined:

The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability for anything done or omitted in the discharge of the task contemplated by
275[22] 276[23] 277[24] 278[25]

Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195. Senate v. Ermita, Id. De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2. No. L-77663, April 12, 1988, 159 SCRA 558.

122 this Order, the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. x x x. x x x x x x

It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this Court.

Chavez v. Sandiganbayan279[26] reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions. Commander-in-chief provision; Legal standing to question a presidential proclamation; moot and academic cases when courts still has to decide it; state of rebellion and state of national emergency distinguished PROF. RANDOLF S. DAVID*, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG VS. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, NIEZ CACHO-OLIVARES PUBLISHING CO., INC., G.R. No. 171396 May 3, 2006 - versus 279[26] *

AND

TRIBUNE

193 SCRA 282 (1991).

Consolidated with six (6) other Petitions

123

HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, SANDOVAL-GUTIERREZ, J.: The cases: These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. The Facts: On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my capacity as their Commanderin-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. She cited the following facts as bases: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

124

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the peoples confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; On the same day, the President issued G. O. No. 5 implementing PP 1017, thus: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government;

125

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor

126 announced that warrantless arrests and take-over of facilities, including media, can already be implemented.280 Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.281 According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.282 A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. The PNP warned that it would take over any media organization that would not follow standards set by the government during the state of national emergency. Director General Lomibao stated that if they do not follow the standards and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of national emergency. He asked for balanced reporting from broadcasters when
280 281

Petition in G.R. No. 171396, p. 5. Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were broadcast as breaking news by the major television stations of this country. Petition in G.R. No. 171400, p. 11.

282

127 covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.283 Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite. Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the Batasan 5 decided to stay indefinitely. Hence, these Petitions. I s s u e s: A. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whether the Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge 1. PROCEDURAL I283

Moot and Academic Principle

Ibid.

128 Courts may exercise the power of judicial review only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of unconstitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself. Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy admitting of specific relief. The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered moot and academic by President Arroyos issuance of PP 1021. Such contention lacks merit. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,284 so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case285 or dismiss it on ground of mootness. The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative. The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution (Province of Batangas vs. Romulo, .R. No. 152774, May 27, 2004, 429 SCRA 736). second, the exceptional character of the situation and the paramount public interest is involved (Lacson vs. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756); third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public (Province of Batangas vs. Romulo); and

284 285

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736. Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra.

129 fourth, the case is capable of repetition yet evading review (Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. ) All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. 286 And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as a right of appearance in a court of justice on a given question.287 In private suits, standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the real-party-in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.288 Succinctly put, the plaintiffs standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down in Beauchamp v. Silk,289 where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:290 In matter of mere public right,
286

Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438. Blacks Law Dictionary, 6th Ed. 1991, p. 941. Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). 275 Ky 91, 120 SW2d 765 (1938). 19 Wend. 56 (1837).

287
288 289 290

130 howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan291 held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied. However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt,292 later reaffirmed in Tileston v. Ullman.293 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the direct injury test in our jurisdiction. In People v. Vera,294 it held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,295 Manila Race Horse Trainers Association v. De la Fuente,296 Pascual v. Secretary of Public Works297 and Anti-Chinese League of the Philippines v. Felix.298 However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,299 where the transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,300 this Court resolved to pass upon the issues raised due to the far-reaching implications of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.301
291 292 293 294 295 296 297 298 299

232 NC 48, 59 SE2d 359 (1950). 302 U.S. 633. 318 U.S. 446. 65 Phil. 56 (1937). G.R. No. 117, November 7, 1945 (Unreported). G.R. No. 2947, January 11, 1959 (Unreported). 110 Phil. 331 (1960). 77 Phil. 1012 (1947). 84 Phil. 368 (1949) The Court held: Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. L-No. 40004, January 31, 1975, 62 SCRA 275. Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law; Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of

300

301

131 Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of transcendental importance. Pertinent are the following cases: (1) Chavez v. Public Estates Authority,302 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora,303 wherein the Court held that given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review of the Visiting Forces Agreement; (3) Lim v. Executive Secretary,304 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that Balikatan 02-01 involves the exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,305 that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed. By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: 1. the cases involve constitutional issues; for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

2.

the general public which possesses the right. Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers lack of personality to sue may be disregarded in determining the validity of the VAT law; Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved under the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it. Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a proper party, nonetheless, it has the discretion to waive the requirement, in determining the validity of the implementation of the CARP. Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain taxpayers suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised. Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money; Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where serious constitutional questions are involved, the transcendental importance to the public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities of procedures; De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi.
302 303
304

G.R. No. 133250, July 9, 2002, 384 SCRA 152. G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449. G.R. No. 151445, April 11, 2002, 380 SCRA 739. Supra.

305

132

3. 4. 5.

for voters, there must be a showing of obvious interest in the validity of the election law in question; for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing. In Kilosbayan, Inc. v. Morato,306 the Court ruled that the status of Kilosbayan as a peoples organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,307 the Court reiterated the direct injury test with respect to concerned citizens cases involving constitutional issues. It held that there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act. In Lacson v. Perez,308 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,309 the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct injury resulting from illegal arrest and unlawful search committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing.
306 307 308 309

G.R. No. 118910, November 16, 1995, 250 SCRA 130. G.R. No. 132922, April 21, 1998, 289 SCRA 337. G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756. G.R. No. 159085, February 3, 2004, 421 SCRA 656.

133 It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the liberality doctrine on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the transcendental importance doctrine, a relaxation of the standing requirements for the petitioners in the PP 1017 cases. This Court holds that all the petitioners herein have locus standi. Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency, 310 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people311 but he may be removed from office only in the mode provided by law and that is by impeachment.312 B. SUBSTANTIVE I. Review of Factual Bases

The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker and Montenegro v. Castaneda to the volatile era of Lansang v. Garcia, Aquino, Jr. v. Enrile, and Garcia-Padilla v. Enrile. The tug-ofwar always cuts across the line defining political questions, particularly those questions in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances, under which the President is supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn, constitutionally supreme. In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile. There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. Then came GarciaPadilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re310

From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302). Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.

311

312

Ibid., Sec. 2.

134 examine the latter case, ratiocinating that in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God. The Integrated Bar of the Philippines v. Zamora -- a recent case most pertinent to these cases at bar -- echoed a principle similar to Lansang. While the Court considered the Presidents calling-out power as a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government. It speaks of judicial prerogative not only in terms of power but also of duty. As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct, but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis and that if he fails, by way of proof, to support his assertion, then this Court cannot undertake an independent investigation beyond the pleadings. Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty. II. Constitutionality of PP 1017 and G.O. No. 5

135 The operative portion of PP 1017 may be divided into three important provisions, thus: First provision: by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion Second provision: and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; Third provision: as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency. First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In Sanlakas v. Executive Secretary (G.R. No. 159085, February 3, 2004, 421 SCRA 656) this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,313 the Court ruled that the only criterion for the exercise of the calling-out power is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. Are these conditions
313

Supra.

136 present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a state of rebellion (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a state of rebellion emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. President Arroyos declaration of a state of rebellion was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Second Provision: Take Care Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads: SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. As the Executive in whom the executive power is vested,314 the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his
314

Section 1, Article VII of the Constitution.

137 department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, execute its laws.315 In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country,316 including the Philippine National Police317 under the Department of Interior and Local Government.318 Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted319 from Former President Marcos Proclamation No. 1081, which partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. Is it within the domain of President Arroyo to promulgate decrees? PP 1017 states in part: to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction. President Arroyos ordinance power is limited to executive orders, proclamations, administrative orders, etc. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same
315
316

Section 5, Article VII of the Constitution. Section 18, Article VII of the Constitution.

317

Section 6, Article XVI of the Constitution.

318

See Republic Act No. 6975.

319

Ironically, even the 7th Whereas Clause of PP 1017 which states that Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government replicates more closely Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of the 1987 Constitution which provides that, [t[he prime duty of the Government is to serve and protect the people.

138 category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.320 This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that [t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to laws, she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. Third Provision: Power to Take Over The pertinent provision of PP 1017 states: x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency. The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience to all the laws and to all decrees x x x but also to act pursuant to the provision of Section 17, Article XII which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the martial law thinking of the 1971 Constitutional Convention.321 In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972
320

Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); GarciaPadilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.

139 instructing the Secretary of National Defense to take over the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency. Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers. A distinction must be drawn between the Presidents authority to declare a state of national emergency and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. Section 23, Article VI of the Constitution reads: SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. It may be pointed out that the second paragraph of the above provision refers not only to war but also to other national emergency. If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a state of national emergency pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a state of national emergency. The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other.322 Considering that Section 17 of Article XII and Section 23 of

321

Section 17, Article XIV of the 1973 Constitution reads: In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. Antieau, Constitutional Construction, 1982, p.21.

322

140 Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.323 Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form
323

Cruz, Philippine Political Law, 1998, p. 94.

141 of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL. Is the visiting forces agreement between the Philippines and the UNITED STATES void and unconstitutional? Is it a self-executing treaty that can be implemented without ratification by the US Senate though ratified by the Philippine Senate? SUZETTE NICOLAS y SOMBILON, vs. ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH, G.R. No. 175888, February 11, 2009 AZCUNA, J.: The facts are not disputed. Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows: The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex A, committed as follows: That on or about the First (1 st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the abovenamed accuseds (sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd design and by means of force, threat and intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe,

142 Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice. CONTRARY TO LAW.324[1] Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings. During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required. On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus: WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged. The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties provided for under Article 41 of the same Code. Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail. Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages. As a result, the Makati court ordered Smith detained at the Makati jail until further orders. On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention
324[1]

Annex B of RTC Decision, CA rollo, p. 45.

143 under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states: The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila. (Sgd.) KRISTIE A. KENNEY Representative of the United States of America DATE: 12-19-06 (Sgd.) ALBERTO G. ROMULO Representative of the Republic of the Philippines

DATE: December 19, 2006__

and the Romulo-Kenney Agreement of December 22, 2006 which states: The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA. The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows: WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.325[3] Hence, the present actions. HELD: Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and unconstitutional. This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan v. Zamora,326[4] brought by Bayan, one of petitioners in the present cases. Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of the previous ruling is sought on the ground that the issue is of
325[3] 326[4]

Rollo, pp. 90-127. G.R. No. 138570, October 10, 2000, 342 SCRA 449.

144 primordial importance, involving the sovereignty of the Republic, as well as a specific mandate of the Constitution. The provision of the Constitution is Art. XVIII, Sec. 25 which states: Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country. It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself. This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US. Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate. Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines. To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution. The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State. This Court finds that it is, for two reasons.

145 First, as held in Bayan v. Zamora,327[5] the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-called CaseZablocki Act, within sixty days from ratification.328[6] The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate. Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.329[10] The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence allowed under the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence. The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions. WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court. Residence requirement for local government positions.

327[5] 328 329[10]

Supra, note 4.
[6]

The Case-Zablocki Act, 1 U.S.C. 112b (a) (1976 ed., Supp IV). See also Weinberger v. Rossi, 456 U.S. 25 (1982), in which the U.S. Supreme Court sustained recognition as a treaty of agreements not concurred in by the U.S. Senate. See Letter of Ambassador Thomas C. Hubbard quoted in Bayan, 342 SCRA 449, 491.

146 TESS DUMPIT-MICHELENA VS. BOADO, ET AL., 475 SCRA 290

Carpio, J. Facts: The petitioner who is the daughter of Rep. Tomas Dumpit, 2 nd District of La Union, filed her Certificate of Candidacy for Municipal Mayor of Agoo, La Union for the May, 2004 elections. The respondents filed a case for her disqualification on the ground that she is a registered voter of Naguilian , La Union and only transferred her registration as a voter to San Julian West, Agoo, La Union, on October 24, 2003. Her presence in San Julian West, Agoo, La Union was noticed only after her certificate of candidacy. Barangay officials claimed in an affidavit that she is not a resident of the said Barangay. The petitioner countered that she acquired a new domicile in San Juan West when she purchased from her father a residential lot on April 19, 2003 and she even designated a person as caretaker of her residential house. Held: While residence and domicile are synonymous, domicile of origin is not easily lost. To successfully effect a change of domicile, the following requisites must be present: 1. an actual removal or actual change of domicile; 2. a bona fide intention of abandoning the former place of residence and establishing a new one; and 3. acts which correspond with the purpose. In the case of petitioner while she bought a parcel of land in San Julian West, Agoo, La Union on April 19, 2003, property ownership is not an indicia of the right to vote or voted for an office. To effect a change of residence, there must be animus manendi coupled with animus non revertendi. The intent to remain in the new domicile of choice must be for an indefinite period of time, change of domicile or residence must be voluntary and the residence a the place chose for the new domicile must be actual. In the case at bar, what was constructed by the petitioner on said lot was a beach house which is at most a temporary place of relaxation. It can hardly be considered a place of residence. Finally, in the Special Power of attorney designating a caretaker with a monthly salary of P2,500.00, it was shown that she is a resident of San Julian West, Agoo, La Union and No. 6 butterfly St., Valle Verde 6, Pasig, Memtro Manila. This shows that she has a number of residences and the acquisition of another one does not automatically make the recently acquired residence her new domicile. Tess Dumpit-Michelenas cancellation of Certificate of Candidacy for Municipal Mayor of Agoo, La Union, is therefore valid.

147 3 consecutive terms means election for the same position . It does not include succession. BENJAMIN BORJA VS. COMELEC, and JOSE T. CAPCO, JR., G.R. No. 133495, September 3, 1998 Mendoza, J. Issue: Whether a Vice Mayor who succeeds to the Office of the Mayor by operation of law and serves the remainder of the term is considered to have served a term for the purpose of the three-term limit on local officials as provided under the Local Government Code. Held: No. Article X, Section 8 of the Constitution provides: Section. The term of office of elective local officials, except barangay officials, shall be determined by law, which shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The above provision of the Constitution is restated in Section 43 [b] of RA No. 7160, the Local Government Code. The term limit for local elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, IT IS NOT ENOUGH THAT AN INDIVIDUAL HAS SERVED THREE CONSECUTIVE TERMS IN AN ELECTIVE LOCAL OFFICE, HE MUST ALSO HAVE BEEN ELECTED TO THE SAME POSITION FOR THE SAME NUMBER OF TIMES BEFORE THE DISQUALIFICATION CAN APPLY. Clearly, therefore, before the disqualification could apply, the following requisites must be present: 1. the local official must have been elected for the same position [Example: Mayor] three times; and 2. the local official must have served three consecutive terms as Mayor. In the present case, only the 2nd requisite is present since in 1988, the private respondent was not a candidate for Mayor in 1988 but as Vice Mayor though he succeeded the elected mayor in 1989. It was only in 1992 and 1995 that he was a candidate for Mayor. As such, he could still be a candidate for Mayor in the May, 1998 elections.

148 ROMEO LONZANIDA VS. COMELEC, July 28, 1999, 311 SCRA 602 The petitioner was elected Mayor for three (3) consecutive terms. During his 3rd term (1995 elections), he was proclaimed the winner but his opponent filed an election protest and two (2) months before the next election and 4 months before the end of his 3 rd term , the COMELEC declared his opponent to be the winner and was able to occupy the position of Mayor for 2 months. Is he entitled to run for the position of mayor in the election after he was declared a loser during his 3rd term but he almost completed 3 terms? Held: Yes because in order that the prohibition shall apply to him, the following requisites must be present: 1. the local official must have been elected for the same position [Example: Mayor] three times; and 2. the local official must have fully served three consecutive terms as Mayor. In this case, he was not elected to the position 3 times because he lost during the 3 rd time though he served the office for 2 years and 10 months. Likewise even assuming that he won the 3rd election, he did not fully serve the term of 3 years. It is not enough that an individual has served 3 consecutive terms in an elective local office, he must have also been elected to the same position for the same number of times before the disqualification can apply. Prohibition to run for more than 3 consecutive terms. FEDERICO T. MONTEBON vs. COMELEC & ELEANOR ONDOY, G.R. No. 180444 , April 8, 2008 Petitioners Montebon, Ondoy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007, petitioners and other candidates330[4] for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term. In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor. However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of

330[4]

Jesus C. Mendoza, Teopisto C. Prosia, Jr., Nicolas Y. Edillon, Ernesto B. Caga, Albaerto T. Gallarde, and Eugenio M. Arigo.

149 Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections. In the hearing of May 10, 2007, the parties were directed to file their respective memoranda. In petitioners memorandum, they maintained that respondents assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected. On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an interruption in one of the previous three terms. On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondents assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.331[5] On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows: Respondents assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second term as councilor. Thus, in running for councilor again in the May 14, 2007 Elections, respondent is deemed to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his 2004-2007 term. Petitioner Montebons and Ondoys June 9, 2007 manifestation and omnibus motion are hereby declared moot and academic with the instant disposition of their motion for reconsideration. WHEREFORE, premises considered, petitioners motion for reconsideration is hereby DENIED for lack of merit. SO ORDERED.332[6] Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondents assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as municipal councilor. The petition lacks merit.
331[5] 332[6]

Rollo, p. 34. Id. at 27-28.

150

The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the same post. Section 8, Article X thereof states: Sec. 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 officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 of the Local Government Code also provides: Sec. 43. Term of Office. No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. In Lonzanida v. Commission on Elections,333[7] the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms. 334[8] In Borja, Jr. v. Commission on 335[9] Elections, the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.336
[10]

While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004. Succession in local government offices is by operation of law.337[11] Section 44338[12] of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. Thus:

333[7] 334[8]

370 Phil. 625 (1999). Id. at 636. 335[9] 356 Phil. 467 (1998). 336[10] Id. at 478. 337[11] See Borja, Jr. v. Commission on Elections, 356 Phil. 467, 476-477 (1998). 338[12] SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x.

151 SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor. In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows: The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.339[13] (Emphasis added) Thus, respondents assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC that The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently unable to succeed and occupy the post vacated. xxxx

339[13]

Supra note 7 at 638.

152 Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.340[14] THREE-TERM LIMIT FOR BARANGAY CAPTAINS. NICASIO BOLOS, JR. VS. THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, G.R. No. 184082, March 17, 2009 The facts are as follows: For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002. In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post as Punong Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007. Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160. Cinconiegue contended that petitioners relinquishment of the position of Punong Barangay in July 2004 was voluntary on his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a voluntary renunciation of his post as Punong Barangay. In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang Bayan member, his remaining term of office as
340[14]

Rollo, p. 26.

153 Punong Barangay, which would have ended in 2007, was left unserved. He argued that his election and assumption of office as Sangguniang Bayan member was by operation of law; hence, it must be considered as an involuntary interruption in the continuity of his last term of service. Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the Hearing Officers action on the matter were endorsed to and received by the Commission on November 21, 2007. The issue before the COMELEC was whether or not petitioners election, assumption and discharge of the functions of the Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office as Punong Barangay of Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service as Punong Barangay for the full term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have served three consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections. But if it is considered as an involuntary renunciation, petitioners service is deemed to have been interrupted; hence, he is not barred from running for another term. In a Resolution341[1] dated March 4, 2008, the First Division of the COMELEC ruled that petitioners relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was a voluntary renunciation of the Office of Punong Barangay. The dispositive portion of the Resolution reads: WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition. Respondent NICASIO BOLOS, JR., having already served as Punong Barangay of Barangay Biking, Dauis, Bohol for three consecutive terms is hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Barangay and SK Elections. Considering that respondent had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said office shall be governed by the provisions of Section 44 of the Local Government Code.342[2] Petitioners motion for reconsideration was denied by the COMELEC en banc in a Resolution343[3] dated August 7, 2008. Hence, this petition for certiorari raising this lone issue: WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY
341[1] 342[2] 343[3]

Rollo, pp. 15-23. Id. at 22. Id. at 24-27.

154 IN THE OCTOBER 29, 2007 BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS PROCLAMATION.344[4] The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by petitioner when he assumed office as Municipal Councilor so that he is deemed to have fully served his third term as Punong Barangay, warranting his disqualification from running for the same position in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms. Nonetheless, while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its discretion in disqualifying him as a candidate for Punong Barangay since he did not complete his third term by operation of law. The argument does not persuade. The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution, which provides: Sec. 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. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. David v. Commission on Elections345[5] elucidates that the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service. The discussions in the Constitutional Commission showed that the term of office of barangay officials would be [a]s may be determined by law, and more precisely, [a]s provided for in the Local Government Code.346[6] Section 43(b) of the Local Government Code provides that barangay
344[4]

Id. at 8. G.R. No. 127116, April 8, 1997, 271 SCRA 90, 104. Id. at 104-105. MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the office of barangay officials as provided for? MR. DAVIDE. As may be determined by law.

345[5] 346[6]

MR. NOLLEDO. As provided for in the Local Government Code? MR. DAVIDE. Yes.

155 officials are covered by the three-term limit, while Section 43(c)347[7] thereof states that the term of office of barangay officials shall be five (5) years. The cited provisions read, thus: Sec. 43. Term of Office. x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. (c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin after the regular election of barangay officials on the second Monday of May 1997: Provided, That the sangguniang kabataan members who were elected in the May 1996 elections shall serve until the next regular election of barangay officials. Socrates v. Commission on Elections348[8] held that the rule on the three-term limit, embodied in the Constitution and the Local Government Code, has two parts: x x x The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the threeterm limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms.
xxx xxx xxx

THE PRESIDENT. Is there any other comment? Is there any objection to this proposed new section as submitted by Commissioner Davide and accepted by the Committee? MR. RODRIGO. Madam President, does this prohibition to serve for more than three consecutive terms apply to barangay officials? MR. DAVIDE. Madam President, the voting that we had on the terms of office did not include the barangay officials because it was then the stand of the Chairman of the Committee on Local Governments that the term of barangay officials must be determined by law. So it is now for the law to determine whether the restriction on the number of reelections will be included in the Local Government Code. MR. RODRIGO. MR. DAVIDE. Yes. So that is up to Congress to decide.

MR. RODRIGO. I just wanted that clear in the record.

347[7] 348[8]

As amended by R.A. No. 8524, which took effect on March 11, 1998. G.R. No. 154512, November 12, 2002, 391 SCRA 457.

156

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. 349[9] In Lonzanida v. Commission on Elections,350[10] the Court stated that the second part of the rule on the three-term limit shows the clear intent of the framers of the Constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term. The Court held that two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same government post; and (2) that he has fully served three consecutive terms.351[11] In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms, satisfying the first condition for disqualification. What is to be determined is whether petitioner is deemed to have voluntarily renounced his position as Punong Barangay during his third term when he ran for and won as Sangguniang Bayan member and assumed said office. The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position as Punong Barangay. The COMELEC correctly held: It is our finding that Nicasio Bolos, Jr.s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, is a voluntary renunciation. As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of office when he ran for a third term in the Barangay Elections of 2002. When he filed his certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as Punong Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed his Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for him as such and then after being elected and proclaimed, return to his former position. He knew that his election as municipal councilor would entail abandonment of the position he held, and he intended to forego
349[9] 350[10] 351[11]

Id. at 467. G.R. No. 135150, July 28, 1999, 311 SCRA 602, 613. Id. at 611.

157 of it. Abandonment, like resignation, is voluntary.352[12] Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the Court deems as a voluntary renunciation of said office. Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left his post as Punong Barangay by operation of law; hence, he did not fully serve his third term as Punong Barangay. The term operation of law is defined by the Philippine Legal Encyclopedia353[13] as a term describing the fact that rights may be acquired or lost by the effect of a legal rule without any act of the person affected. Black's Law Dictionary also defines it as a term that expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or cooperation of the party himself.354[14] An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v. Commission on Elections.355[15] The respondent therein, Sesinando F. Potencioso, Jr., was elected and served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his second term, he succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160.356[16] Potenciosos assumption of office as Vice-Mayor was considered an involuntary severance from his office as Municipal Councilor, resulting in an interruption in his second term of service.357[17] The Court held that it could not be deemed to have been by reason of voluntary renunciation because it was by operation of law. 358[18] Hence, Potencioso was qualified to run as candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized National and Local Elections. Further, in Borja, Jr. v. Commission on Elections,359[19] respondent therein, Jose T. Capco, Jr., was elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco became Mayor, by operation of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for two more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11,
352[12] 353[13]

Rollo, pp. 18-19. Jose Agaton R. Sibal, copyright 1986. 354[14] Sixth Edition, copyright 1990. 355[15] G.R. No. 180444, April 9, 2008, 551 SCRA 50. 356[16] SEC. 44. Permanent Vacancies in the Offices of the Governor, Mayor, and Vice Mayor.(a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vicegovernor, mayor or vice-mayor, the highest ranking sanggunian member or in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x 357[17] Supra note 15. 358[18] Id. 359[19] G.R. No. 133495, September 3, 1998, 295 SCRA 157.

158 1998 election. Capcos disqualification was sought on the ground that he would have already served as Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court declared that the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve the same elective position.360[20] The Court held that Capco was qualified to run again as mayor in the next election because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law.361[21] Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor.362[22] The vice-mayors assumption of the mayorship in the event of the vacancy is more a matter of chance than of design.363[23] Hence, his service in that office should not be counted in the application of any term limit.364[24] In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead relinquished his office as Punong Barangay during his third term when he won and assumed office as Sangguniang Bayan member of Dauis, Bohol, which is deemed a voluntary renunciation of the Office of Punong Barangay. In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008, disqualifying petitioner from being a candidate for Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and August 7, 2008 are hereby AFFIRMED. Power of the Ombudsman to suspend or dismiss public officials. Not only to recommend but to directly dismiss or suspend public officials. REMIA F. BONCALON vs. OMBUDSMAN, G.R. No. 171812, December 24, 2008. QUISUMBING, J. The antecedent facts are as follows: On November 25, 1997, Loida C. Arabelo,365[5] the State Auditor II of Bago City, Negros Occidental, conducted an audit on the cash accounts of Boncalon, a Cashier IV at Bago City Treasurers Office. The audit revealed a cash shortage of P1,023,829.56.366[6] The
360[20] 361[21] 362[22] 363[23] 364[24] 365[5] 366[6]

Id. at 169. Id. at 170. Id. Id. at 168. Id.

Arabello in some parts of the records. Rollo, pp. 52-53. xxxx (1) The City Cashier IV, Remia F. Boncalon, was short of P1,023,829.56 on her cash accountability at the time of the examination due to falsification, undocumented and overstated disbursements, undeposited collection and in connivance with Renato L. Diy, Manager and Ernesto Sa-onoy, Cashier, both of PNB-RB, Bago City

159 state auditor also discovered, upon verification from the depository bank, that the entry in Boncalons cashbook pertaining to the deposit of P1,019,535.21 on October 31, 1997 was false. Deposits totaling said amount were made only on November 25, 1997 and December 22, 1997, in the amounts of P200,000.00 and P819,535.21, respectively. In view of the audit findings, Boncalon was administratively charged with dishonesty before the Office of the Ombudsman (Visayas). The case was docketed as OMB-VIS-ADM99-0488. Boncalon denied accountability for any cash shortage and averred that she was informed by the state auditor of the alleged shortage only on October 1, 1998, or after she had gone on a commuted leave of absence from April 13, 1998 to July 15, 1998, wherein she was cleared of money and property accountability and paid the corresponding money value of said leave.367[7] She also contended that had the state auditor examined her safe, she would have found the bundles of money worth P819,535.21, which she had overlooked.368[8] Graft Investigation Officer (GIO) I Alvin Butch E. Caares recommended the dismissal of the case since the questioned amounts were already accounted for. He also said that the erroneous entry of deposit in Boncalons cashbook can only be considered as an administrative lapse, subject only to the admonition of the erring public officer. Upon review, Director Virginia Palanca-Santiago, Office of the Ombudsman (Visayas), reversed the recommendation of GIO I Caares. She ruled that the untimely deposit of the questioned amount only means that Boncalon was in possession of the money
Branch, in violation of Articles 171, 217 and 222 of the Revised Penal Code; The cash shortage was arrived at as follows: Balance of Accountability as of November 25, 1997 per cashbook ADD: Debits to Accountability Fictitious entry in the official Cashbook for deposit under Fictitious Report of Daily Collections and Deposits No. 101-97101836 dated 10/31/97 Fictitious entry of payroll No. 14432 in the Report of Cash Disbursement No. 101-9706994 dated 8/18/97 and in the official cashbook of the accountable Officer Overstatement of total of Report of Cash Disbursement No. 101-9706994 dated 5/30/97 Amount of collection for the months of June and August 1997 not deposited Total Audited Accountability as of Nov. 25, 1997 Less: Credits to Accountability Cash and Valid cash items counted at the time of the examination SHORTAGE (Emphasis ours.) CA rollo, pp. 23-24. Id. at 26. P

47,106.14

P 1,019,535.21

2,550.00

1,644.02

100.33 P 1,023,829.56 P 1,070,935.70

47,106.14 P 1,023,829.56

367[7] 368[8]

160 and had made use of it. Further, her act of falsifying an entry of deposit in her cashbook, which is an official document, signifies want of integrity on her part as she had the disposition to betray, cheat or defraud the government.369[9] Boncalon sought reconsideration, but to no avail. Thus, she appealed to the Court of Appeals. In the Decision dated February 27, 2004, the Court of Appeals found Boncalon guilty of dishonesty under Section 23, Rule XIV of the Omnibus Rules on Civil Service. Citing the Cash Examination Manual, the Court of Appeals stressed that entries in the cashbook are the direct and personal responsibility of every cash accountable officer. And should they be duly permitted to be assisted by subordinates in case of heavy volume of work, the work of their subordinates still remains under their close and strict supervision. The Court of Appeals also emphasized that when Boncalon certified under oath that she produced all her cash, treasury, warrants, checks, money orders, cash items, paid vouchers, unused accountable forms, etc. to the Auditor/Examiner on November 25, 1997, she cannot later claim that she simply failed to notice the bundles of money in her safe.370[10] The fallo of the decision reads, WHEREFORE, the instant petition is hereby DENIED. Accordingly, the finding of the Office of the Ombudsman holding petitioner guilty of dishonesty and meting the penalty of dismissal from government service with forfeiture of all benefits and perpetual disqualification of holding public office is hereby AFFIRMED. SO ORDERED.371[11] Aggrieved, Boncalon filed this petition contending that: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING PETITIONERS DISMISSAL FROM THE SERVICE WITH FORFEITURE OF ALL BENEFITS AND PERPETUAL DISQUALIFICATION TO HOLD PUBLIC OFFICE ALTHOUGH THE OMBUDSMAN HAS NO POWER TO DISMISS PUBLIC OFFICIALS AND EMPLOYEES; II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING PETITIONERS DISMISSAL FROM THE SERVICE, DESPITE THE FACT THAT SHE HAS NOT INCURRED ANY SHORTAGE; THAT SHE HAS BEEN CLEARED OF MONEY AND PROPERTY ACCOUNTABILITY; THAT SHE HAS ACCOUNTED THE FUNDS IN HER CUSTODY AND NO DAMAGE HAS BEEN CAUSED TO THE CITY OF BAGO; and III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING PETITIONERS DISMISSAL FROM THE SERVICE
369[9]

Id. at 18-21. Rollo, pp. 32-34. 371[11] Id. at 36.

370[10]

161 DESPITE THE ABSENCE OF PROOF BUT RELIANCE MERELY ON PRESUMPTIONS, CONJECTURES AND INFERENCES THAT ARE MISTAKEN.372[12] Essentially, the issues for resolution are: (1) Did the Court of Appeals err in upholding Boncalons dismissal from service on the ground of dishonesty? and (2) Is the Ombudsman empowered to dismiss public officials and employees in administrative cases? Petitioner contends that the alleged shortage was already accounted for in the November 25, 1997 and December 22, 1997 bank deposits. She explains that the late deposits of the said amounts were due to her failure to notice the same in her safe, as they were in bundles. She also argues that the posting of entries in her cashbook was already delegated to her subordinates due to her multifarious duties and functions as Cashier IV. As such, the entry of deposit dated October 31, 1997 may only have been an unintended mistake of her subordinates, considering that it was the last day of the month and holiday season followed. She further avers that for liability to attach, notice and demand must be made upon her to afford her due process, but to the contrary, the state auditor informed her only on October 1, 1998 or more than ten months after the audit, and after she had gone on an approved leave of absence wherein she was cleared of money and property accountability and paid the money value of said leave. Invoking Madarang v. Sandiganbayan,373[13] she finally contends that mere absence of funds is not sufficient proof of conversion, nor is her mere failure to turn over the funds at any given time sufficient to make a prima facie case, for conversion must be affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows. The Office of the Solicitor General (OSG), for respondent Office of the Ombudsman (Visayas), maintains that the Court of Appeals did not err in upholding Boncalons dismissal because the cash shortage and false entry of deposit remained undisputed. Even assuming that it was her subordinates who posted the said entry in her cashbook, still, she should have taken the necessary precautions to verify the truthfulness of each entry therein. But she did not. Thus, her explanation, that she overlooked the P819,535.21 inside her safe as they were in bundles, was purely an alibi, too flimsy to accept. After a judicious evaluation of the submissions and pieces of evidence of both parties, we are in agreement that petitioner is, indeed, guilty of dishonesty. First, this Court finds no basis for Boncalons protestations that she was deprived of due process of law merely because the state auditor belatedly notified her of the alleged cash shortage. In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of.374[14] Here, we take note that Boncalon was given every opportunity to explain her side in her letters to the state auditor dated

372[12] 373[13] 374[14]

Id. at 17. G.R. No. 112314, March 28, 2001, 355 SCRA 525, 535. Casimiro v. Tandog, G.R. No. 146137, June 8, 2005, 459 SCRA 624, 633.

162 October 5, 1998,375[15] October 19, 1998376[16] and December 10, 1998.377[17] She was further heard in person during investigation by the graft investigating officer, as well as by the Director of the Office of the Ombudsman (Visayas), and she was able to participate in all the stages of the administrative proceedings. Despite all these, she could not justify the averred cash shortage as of November 25, 1997. The Court acknowledges that indeed, as claimed by petitioner, when auditor Arabelo made her demand on October 2, 1998 upon the petitioner to restitute P1,023,829.56378[18] the same had already been settled and as of the said date the discrepancies found in connection with the November 25, 1997 audit had already been ironed out. Considering that the demand was made at the time when the amounts had already been produced, then the prima facie evidence that missing funds were put to personal use, which presumption Article 217 of the Revised Penal Code supplies in connection with the felony of malversation, did not arise. But the absence of the said prima facie evidence does not necessarily equate to an absence of administrative liability on the part of petitioner. It is undisputed that: 1) Petitioner had the duty to deposit in the bank the amount of P1,019,535.21 by October 31, 1997; 2) Such amount was not deposited on October 31, 1997; 3) The entry in petitioners cashbook of a deposit on October 31, 1997 in the amount of
375[15]

CA rollo, p. 34. xxxx Dear Miss Arabelo: xxxx Considering the big amount involved and the lapse of time I respectfully request that I be given a time of at least three (3) weeks within (sic) to go over my records to determine the basis of such findings. xxxx 376[16] Id. at 35. xxxx 1) Re undeposited amount One Million Nineteen Thousand Five Hundred Thirty Five & 21/100 (P1,019,535.21) Of the amount of P1,019,535.21, the P200,000.00 was already deposited on November 25, 1997 when the examination was conducted per deposit slip copy hereto attached. The balance of P819,535.21 was deposited on December 22, 1997 per deposit slip copies hereto attached. The small delay in affecting the deposit was due to the volume of work in the office and in the preparation of the necessary papers relative hereto. Be that as it is, this [deficiency] has already been long adjusted. (Emphasis supplied.) xxxx 377[17] Id. at 36. xxxx 1) How the shortage of P1,023,829.56 occurred. The shortage of P1,023,829.56 is not, strictly speaking, a shortage because the amounts, like the P200,000 was already deposited with the bank at the time of the cash examination which you failed to consider in the audit; the amount of P819,535.21 was already bundled and prepared ready for deposit; These differences were brought about because of the multifarious duties of a cashier and lack of properly trained personnel. The Office of the cashier handling several funds among them the General fund (includes Infra and Nalgu) Trust Fund and Special Educational Fund has only nine (9) personnel. 2) [Why the] deposits of P200,000.00 and P819,535.21 made on November 25, 1997 and December 22, 1997 respectively, were not presented to you (examiner) during the cash count last November 25, 1997. During the cash examination, on your demand, all my cash, cash items and other papers related to such examination, were presented to you. If you have missed some of them in your cash count I could not be blamed for them because my attention was never called by you for any discrepancy. From November 25, 1997, the date of the examination, it was only on October 1, 1998 that you formally notified me of the discrepancies you found in my accounts, a lapse of more than ten (10) months. Since a cash examination is to be done contin[u]ously and completely, after a lapse of a reasonable time of more than five (5) months without any report of a discrepancy in my accounts as Cashier, I was confident my accountabilities were okay. That is why your letter of October 1, 1998 was a complete surprise. (Emphasis and underscoring supplied.) xxxx 378 [18] P200,000 was deposited on November 25, 1997, as evidenced by the deposit slip; P819,535.21 was deposited on December 22, 1997, as evidenced by the deposit slip; P4,194.52 was refunded and deposited under O.R. No. 0527601 as evidenced by the O.R. and deposit slip; P100.03 which represents errors in recording of P0.30, P100 and P0.03 were already taken up and recorded as entries. (CA rollo, pp. 35 & 55).

163 P1,019,535.21 is false; 4) The amount was deposited in two tranches P200,000 on November 25, 1997 and P819,535.21 on December 22, 1997. These circumstances starkly speak of an irregularity that calls for an explanation on the part of the responsible officer. Petitioner wants to pass off the matter as an innocent error on her part. Her explanation however fails to convince us that the subject entry was an honest mistake or innocuous error. Her claim that the cash of P819,535.21 was in the safe when the audit was conducted on November 25, 1997, is contradicted by her certification that she produced all her cash items, which amounted to only P47,106.14 in total, before the state auditor on the said date. Also, her claim of having overlooked the bundles of money that were just sitting in her safe is far too incredible to believe. Evidence, to be worthy of credit, must not only proceed from the mouth of a credible witness but must be credible in itself. Stated otherwise, it must be natural, reasonable and probable as to make it easy to believe.379[19] There is no test of the truth of human testimony except its conformity to human knowledge, observation, and experience, and that whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance. 380[20] In the instant case, the subject overlooked sum would comprise, at the very least, eight bundles of P1,000 peso bills plus other notes and coins. This stash is simply too bulky and noticeable to be overlooked, especially in the face of an ongoing audit and cash examination. It is more reasonable to believe the certification which states that the cash items at the time of the audit amounted to only P47,106.14. Petitioner, by making or allowing the making of the subject false entry of deposit, made it appear that the money was already out of her possession and that it was already in the bank, when the truth was that the money was not yet in the bank and was actually unaccounted for. The fact that undated deposit slip/s were used to support the entry of deposit as of October 31, 1997 in the cashbook is already irregular. The undisputed and totally unexplained odd fact that the total amount was split into two deposits that were separately made weeks after the entire sum was supposed to have been deposited on a single day -- October 31, 1997 -- underscores the irregularity. Such acts when connected together paint a clear picture of deliberateness, not innocent error. The same manifests bad faith or, at the very least, each of the said acts constitutes gross negligence amounting to bad faith. The circumstance that the entry of deposit on October 31, 1997 was never corrected to reflect the fact of non-deposit of the amount on that date and the fact of the corresponding deposits of P200,000 on November 25, 1997 and P819,535.21 on December 22, 1997 further underscores the conclusion that the matter was not an innocuous error. Dishonesty is defined as the concealment or distortion of truth in a matter of fact relevant to ones office or connected with the performance of his duty.381[21] The unsatisfactorily explained false entry of deposit in the amount of P1,019,535.21 on October 31, 1997 clearly constitutes dishonesty. Second, her justification that she did not prepare or post the said entry of deposit deserves scant consideration because it appears to be a mere feeble attempt to shift the blame to her subordinates. As explicitly provided in the Cash Examination Manual, entries in her cashbook are her personal and direct responsibility even in instances when she can delegate
379
[19]

380

Safeguard Security Agency, Inc. v. Tongco, G.R. No. 165733, December 14, 2006, 511 SCRA 67, 84; People v. Villaflores, G.R. Nos. 135063-64, December 5, 2001, 371 SCRA 429, 442. [20] Safeguard Security Agency, Inc. v. Tongco, id.; People v. Escalante, G.R. No. 106633, December 1, 1994, 238 SCRA 554, 563.
[21]

381

Alfonso v. Office of the President, G.R. No. 150091, April 2, 2007, 520 SCRA 64, 87.

164 the task to a subordinate due to a heavy volume of work. Moreover, it is highly unacceptable for a public officer like petitioner to attribute the lack of diligence in work to the day of the month it was performed, i.e., last day of the month and the fact that holiday season followed. Due diligence at work should be observed at all times. Third, her liability cannot be mitigated, much less can she be exonerated, because no pecuniary damage was allegedly incurred by the government on account of the late deposits of the public money in the depository bank. As a cash-accountable officer, her duty is to immediately deposit the various funds she received with the authorized government depositories. This duty is clearly set out in Commission on Audit Circular No. 91-368 382[22] which states: Sec. 465. Deposit of Collections. The treasurer/cashier shall deposit intact all his collections as well as all collections turned over to him by the collectors/tellers with the authorized depository bank daily or not later than the next banking day. He shall summarize the collections and deposits accomplishing the Cashier/Treasurers Report of Daily Collections and Deposits (CTRDCD), Prov. Form No. 213(a) in three copies. The original and duplicate, together with the original and duplicate copies of the DSCAFs and the deposit slips and the duplicates of official receipts, shall be submitted daily to the accountant. The third copies of the CTRDCD and the DSCAFs shall be retained by the treasurer/cashier. In the case of municipalities where travel time to the depository bank is more than one day, deposit of collections shall be made at least once a week, or as soon as the collections reach P10,000. Clearly, petitioner is not supposed to keep funds in her custody for longer than a week. A failure to make a timely turnover of the cash received by her constitutes, not just gross negligence in the performance of her duty, but gross dishonesty, if not malversation. 383
[23]

Lastly, Madarang cannot be considered as precedent in the case at bar because the former is a criminal case for malversation while the instant case is an administrative case for dishonesty. It is not amiss to point out that public servants ought to exhibit at all times the highest sense of honesty and integrity, for no less than the Constitution mandates that a public office is a public trust. Public officers and employees are accountable to the people, and must serve with utmost responsibility, integrity, loyalty, and efficiency, as well as act with patriotism and justice, and lead modest lives.384[24] These constitutionally-enshrined principles, oftrepeated in our decisions, are not mere rhetorical flourishes or idealistic sentiments, but they are working standards in accord with the States policy of promoting a high standard of ethics and utmost responsibility in the public service.
382

INSTITUTING A GOVERNMENT ACCOUNTING AND AUDITING MANUAL AND PRESCRIBING ITS USE, which took effect on January 1, 1992. 383 [23] See Concerned Citizen v. Gabral, Jr., A.M. No. P-05-2098, December 15, 2005, 478 SCRA 13, 22. 384[24] Section 1, Article XI, 1987 Philippine Constitution. SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

[22]

165 Apropos the second issue, petitioner contends in her defense that the power of the Ombudsman concerning penalty after an investigation of public officials or employees is merely recommendatory. Thus, it cannot directly impose sanctions against them. On the other hand, the OSG maintains that the prevailing doctrine, as enunciated by us in Ledesma v. Court of Appeals,385[25] is that the power of the Ombudsman with regard to imposing sanctions is not merely advisory but mandatory. On this point, we find that the stance of the OSG is correct. We have repeatedly held in a catena of precedents,386[26] aside from Ledesma, that the Ombudsman has the power to directly impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of an erring public official, other than a member of Congress and the Judiciary, within the exercise of its administrative disciplinary authority as provided for in Section 13(3), 387[27] Article XI of the 1987 Constitution, and Section 15(3) 388[28] of Republic Act No. 6770.389[29] The clear and precise discussion of Justice Carpio on the matter in Office of the Ombudsman v. Court of Appeals390[30] is worth repeating here, to wit: While Section 15(3) of RA 6770 states that the Ombudsman has the power to recommend x x x removal, suspension, demotion x x x of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may enforce its disciplinary authority as provided in Section 21 of RA 6770. The word or in Section 15(3) before the phrase enforce its disciplinary authority as provided in Section 21 grants the Ombudsman this alternative power. Section 21391[31] of RA 6770 vests in the Ombudsman disciplinary authority over all elective and appointive officials of the Government,
385[25] 386

G.R. No. 161629, July 29, 2005, 465 SCRA 437. Barillo v. Gervasio, G.R. No. 155088, August 31, 2006, 500 SCRA 561; Office of the Ombudsman v. Madriaga, G.R. No. 164316, September 27, 2006, 503 SCRA 631; Office of the Ombudsman v. Court of Appeals, G.R. No. 168079, July 17, 2007, 527 SCRA 798; Balbastro v. Junio, G.R. No. 154678, July 17, 2007, 527 SCRA 680; Office of the Ombudsman v. Santiago, G.R. No. 161098, September 13, 2007, 533 SCRA 305. 387[27] Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxxx (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis ours.) xxxx 388 [28] SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: xxxx (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis and underscoring ours.) xxxx 389 [29] AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES, approved on November 17, 1989. 390[30] Supra note 26, at 807-808.
[26]

391

[31]

SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

166 except impeachable officers, members of Congress, and the Judiciary. And under Section 25 of RA 6770, the Ombudsman may impose in administrative proceedings the penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman x x x. Clearly, under Rep. Act No. 6770 the Ombudsman has the power to directly impose administrative penalty on public officials or employees. WHEREFORE, the Decision dated February 27, 2004 and Resolution dated February 14, 2006 of the Court of Appeals in CA-G.R. SP No. 71911, finding petitioner guilty of DISHONESTY and dismissing her from government service, with forfeiture of retirement benefits and perpetual disqualification to hold public office, are hereby AFFIRMED. Academic freedom; due process in disciplinary actions involving students; right to cross-examine is not part of due process in investigations involving students. DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980, December 19, 2007 REYES, R.T., J.: THE FACTS: PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB)392[1] Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity. On March 29, 1995, James Yap was eating his dinner alone in Manangs Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux. He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manangs. Then, the three, together with four other persons went back to Manangs and confronted the two who were still in the restaurant. By
392[1]

College of Saint Benilde is an educational institution which is part of the De La Salle System.

167 admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence then. After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council. The Tau Gamma Phi Fraternity was asking for an apology. Kailangan ng apology in the words of respondent Aguilar. But no apology was made. On March 25, 1995, Ten minutes before his next class at 6:00 p.m., James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue. As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back. Eight to ten guys were running towards him. He panicked. He did not know what to do. Then, respondent Bungubung punched him in the head with something heavy in his hands parang knuckles. Respondents Reverente and Lee were behind Yap, punching him. Respondents Bungubung and Valdes who were in front of him, were also punching him. As he was lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and the group of attackers left. Yap could not recognize the other members of the group who attacked him. With respect to respondent Papio, Mr. Yap said hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya. What Mr. Yap saw was a long haired guy also running with the group. The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the Domino Lux Fraternity, while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity, a rival fraternity. The next day, March 30, 1995, petitioner Yap lodged a complaint393[7] with the Discipline Board of DLSU charging private respondents with direct assault. Similar complaints394[8] were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente. Thus, cases entitled De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (ABPSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227) were docketed as Discipline Case No. 9495-3-25121. The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.395[9] Said notices issued by De La Salle Discipline Board uniformly stated as follows: Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.
393[7] 394[8] 395[9]

Id. at 127. Id. at 128-129. Id. at 130-133.

168 You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf. You may be assisted by a lawyer when you give your testimony or those of your witnesses. On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony. Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of. For your strict compliance.396[13] During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi. On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution397[18] finding private respondents guilty. They were meted the supreme penalty of automatic expulsion,398[19] pursuant to CHED Order No. 4.399[20] The dispositive part of the resolution reads: WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion. In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the charge. SO ORDERED.400[21]

396[13]

Id. at 134. Id. at 139-150. 398[19] Manual of Regulations for Private Schools (1992), Sec. 77(c) provides that expulsion is an extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary. The penalty may be imposed for acts or offenses constituting gross misconduct, dishonesty, hazing, carrying deadly weapons, immorality, selling and/or possession of prohibited drugs such as marijuana, drug dependency, drunkenness, hooliganism, vandalism, and other serious school offenses such as assaulting a pupil or student or school personnel, instigating or leading illegal strikes or similar concerned activities resulting in the stoppage of classes, preventing or threatening any pupil or student or school personnel from entering the school premises or attending classes or discharging their duties, forging or tampering with school records or school forms, and securing or using forged school records, forms and documents. 399[20] Rollo, pp. 151-153. 400[21] Id. at 150.
397[18]

169 Private respondents separately moved for reconsideration401[22] before the Office of the Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a Letter-Resolution402[23] dated June 1, 1995. On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior VicePresident for Internal Affairs. The following day, June 6, 1995, respondent Judge issued a TRO403[24] directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution dated May 3, 1995 and LetterResolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995. On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records of Discipline Case No. 9495-3-25121,404[28] in view of the authority granted to it under Section 77(c) of the Manual of Regulations for Private Schools (MRPS). On the other hand, private respondents Bungubung and Reverente, and later, Valdes, filed petitions-in-intervention405[29] in Civil Case No. 95-74122. Respondent Judge also issued corresponding temporary restraining orders to compel petitioner DLSU to admit said private respondents. On June 19, 1995, petitioner Sales filed a motion to dismiss 406[30] in behalf of all petitioners, except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss407[31] the petitions-in-intervention. On September 20, 1995, respondent Judge issued an Order408[32] denying petitioners (respondents there) motion to dismiss and its supplement, and granted private respondents (petitioners there) prayer for a writ of preliminary injunction. Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court.409[34] Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judges

401[22] 402[23]

Id. at 1284-1304. Id. at 172-178. 403[24] Id. at 180. 404[28] Id. at 208. 405[29] Id. at 210-236. 406[30] Id. at 237-246. 407[31] Id. at 247-275. 408[32] Id. at 1116-1124. 409[34] Id. at 1563-1571.

170 Order dated September 20, 1995. On September 25, 1995, respondent Judge issued 410[35] a writ of preliminary injunction, ordering d\De La Salle not to implement its decision expelling private respondents. On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari411[37] (CA-G.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judges September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995. On April 12, 1996, the CA granted petitioners prayer for preliminary injunction. On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private respondents were to be excluded. 412[38] The Resolution states: RESOLUTION 181-96 RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED. RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM EXPULSION TO EXCLUSION.413[39] Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several demand letters414[40] to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to promulgate an Order dated September 23, 1996 which states: Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent request as meritorious, there being no other plain and speedy remedy available,
410[35] 411[37]

Id. at 114-115. Id. at 336-392. 412[38] Manual of Regulations for Private Schools (1992), Sec. 77(b) provides that exclusion is a penalty in which the school is allowed to exclude or drop the name of the erring pupil or student from the school rolls for being undesirable, and transfer credentials immediately issued. 413[39] Rollo, pp. 125-126. 414[40] Id. at 1599-1606.

171 considering the set deadline for enrollment this current TRIMESTER, and in order to prevent further prejudice to his rights as a student of the institution, DLSU, through the proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally enroll, pending the Commissions Resolution of the instant Motion for Reconsideration filed by DLSU. Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilars counsel wrote another demand letter to petitioner DLSU.415[42] Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No. 181-96, filed a motion to dismiss416[43] in the CA, arguing that CHED Resolution No. 181-96 rendered the CA case moot and academic. On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss of private respondent Aguilar. On October 28, 1996, petitioners requested transfer of case records to the Department of Education, Culture and Sports (DECS) from the CHED.417[46] Petitioners claimed that it is the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS. On November 4, 1996, in view of the dismissal of the petition for certiorari in CAG.R. SP No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September 25, 1995 before respondent RTC Judge of Manila.418[47] On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilars urgent motion to reiterate preliminary injunction. The pertinent portion of the order reads: In light of the foregoing, petitioner Aguilars urgent motion to reiterate writ of preliminary injunction is hereby granted, and respondents motion to dismiss is denied. The writ of preliminary injunction dated September 25, 1995 is declared to be in force and effect. Hence, this case. I S S U E S: Can petitioner DLSU invoke its right to academic freedom in support of its decision to expel the private respondents?

415[42] 416[43]

Id. at 1605-1606. Id. at 435-438. 417[46] Id. at 518-522. 418[47] Id. at 523-530.

172 H E L D: Since De La Salle University is an institution of higher learning, it enjoys academic freedom which includes the right to determine whom to admit as its students. Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint.419[74] According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.420[75] While La Salle is entitled to invoke academic freedom in its actions against its students, the penalty of expulsion imposed by DLSU on private respondents is disproportionate to their misdeed. It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom and that the establishment of rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival. 421[94] This power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question.422[95] We agree with respondent CHED that under the circumstances, the penalty of expulsion is grossly disproportionate to the gravity of the acts committed by private respondents Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only for few seconds and the victims did not suffer any serious injury. Disciplinary measures especially where they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure.423[96] Accordingly, petitioner DLSU may exclude or drop the names of the said private respondents from its rolls for being undesirable, and transfer credentials immediately issued, not EXPEL. Immunity from suit; effect of a void contract with the government; unjust enrichment
419[74]

Miriam College Foundation, Inc. v. Court of Appeals, 401 Phil. 431, 455-456 (2000), citing Tangonan v. Pao, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, 256-257. 420[75] Regino v. Pangasinan Colleges of Science and Technology, G.R. No. 156109, November 18, 2004, 443 SCRA 56. The four essential freedoms of a university were formulated by Mr. Justice Felix Frankfurter of the United States Supreme Court in his concurring opinion in the leading case of Sweezy v. New Hampshire, 354 US 234, 1 L. Ed. 2d 1311, 77 S. Ct. 1203. 421[94] See note 87, at 663-664. 422[95] Malabanan v. Ramento, 214 Phil. 319, 330 (1984). 423[96] Rollo, p. 515.

173

DEPARTMENT OF HEALTH VS. C.V. CANCHELA, et al., 475 SCRA 218 Carpio-Morales, J. Facts: The DOH entered into three owner consultant agreements with the private respondents covering infrastructure projects for the Baguio General Hospital and Medical Center (BGHMC), the Batangas Regional Hospital and the Corazon L. Montelibano Memorial regional Hospital in Bacolod City. The agreements for the three (3) projects are almost identical. This requires the private respondents to prepare: detailed architectural and engineering design plans; technical specifications and detailed estimates of cost of construction of the hospital, including the preparation of bid documents and requirements; and construction supervision until completion of hand-over and issuance of final certificate. While the Agreements were witnessed by the respective Chief Accountants of the hospitals and were duly approved by the Department of Health, the former did not issue corresponding certificates of availability of funds to cover the professional or consultancy fees. The DOH through is authorized representative, wrote separate letters to the respective chiefs of hospitals confirming the acceptance of private respondents complete Contract or Bid Documents for each project and RECOMMENDED THE PAYMENT OF 7.5% OF THE PROJECT ALLOCATION TO PRIVATE RESPONDENTS AS CONSULTANCY FEES. During the construction of the projects, various deficiencies in the performance of the agreed scope of private respondents work were allegedly discovered which were not communicated to the private respondents. Due to such alleged deficiencies, petitioner withheld payment of the consultancy fees due to private respondent. Neither did petitioner return the documents, plans, specifications and estimates submitted by private respondents. Considering the refusal of the DOH to pay said fees despite repeated demands, the private respondents submitted the dispute to the Construction Industry Arbitration Commission (CIAC). After the presentation of evidence by both parties, the Arbitrator issued his decision dated March 30, 1999 sentencing the DOH to pay the private respondents to pay P3,492,713.00 for services performed and completed for and accepted by DOH. The said amount shall earn interest at 6% per annum from the date of the award until the decision becomes final. Thereafter, the principal and the interest accrued as of such time shall earn interest at 12% per annum.

174 The DOH filed a Petition for Review under Rule 43 before the Court of Appeals but was dismissed for being filed out of time. As such, on motion of the private respondents, the Arbitrator issued a Writ of Execution . Issue: Whether or not the CIAC has jurisdiction to entertain the suit considering that the Agreements, being to promote the heath and well-being of the citizens, is in furtherance of the states sovereign and governmental power and therefore, IMMUNE FROM SUIT. Held: In their Memorandum before the Supreme Court, the DOH, for the first time, raised the nullity of the three (3) agreements from the very beginning for failure to include therein a certification of availability of funds which is required under existing laws, particularly the Auditing Code of the Philippines, PD 1445. As such, the fees of the private respondents shall not be based on the project fund allocation but on the basis of reasonable value or on the principle of quantum meruit. While the agreement is indeed void ab initio for violation of existing laws, the DOH is liable to pay the private respondents their consultancy services based on quantum merit to be determined by the Commission on Audit. The invocation of immunity from suit is without merit. This is so because the government has already received and accepted the benefits rendered. To refuse payment as a result of the states immunity from suit would be to allow the government to unjustly enrich itself at the expense of another. (Citing Eslao vs. COA, 195 SCRA 730) Police Power as a limitation to the right to practice a profession PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE GUZMAN, ET AL., June 21, 2004 Facts: After the Professional Regulations Commission (PRC) released the names of successful examinees in the Medical Licensure Examination, the Board of Medicines observed that the grades of the 79 Fatima College of Medicine successful examinees were unusually and exceptionally high in the two (2) most difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology. The Board then issued Resolution No. 19 withholding the registration as physicians of all the examinees from Fatima College of Medicine. Compared with other examines from other schools, the results of those from Fatima were not only incredibly high but unusually clustered close to each

175 other. The NBI Investigation found that the Fatima examinees gained early access to the test questions. Held: It must be stressed that the power to regulate the practice of a profession or pursuit of an occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner. However, the regulating body has the right to grant or forbid such privilege in accordance with certain conditions. But like all rights and freedoms guaranteed by the Constitution, their exercise may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people. As such, mandamus will not lie to compel the Board of Medicine to issue licenses for the respondents to practice medicine. RA 2382 which prescribes the requirements for admission to the practice of medicine, the qualifications of the candidates for the board examination, the scope and conduct of the examinations, the grounds for the denying of the issuance of a physicians license, or revoking a license that has been issued. It is therefore clear that the examinee must prove that he has fully complied with all the conditions and requirements imposed by law and the licensing authority to be granted the privilege to practice medicine. In short, he shall have all the qualifications and none of the disqualifications. The petition is therefore granted. An Ordinance of the City of Manila prohibiting short-time in Motels and Hotels. WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION vs. CITY OF MANILA, represented by MAYOR ALFREDO S. LIM, G.R. No. 122846, January 20, 2009 TINGA, J.: With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality. In City of Manila v. Laguio, Jr, the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or wash up rates for such abbreviated stays. Our earlier decision tested the city ordinance

176 against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition. This Petition challenges the validity of Manila City Ordinance No. 7774 entitled, An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila (the Ordinance). The facts are as follows: On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. The Ordinance is reproduced in full, hereunder: SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning. SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim. MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. They contend that the assailed Ordinance is an invalid exercise of police power.

177 II. To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in ErmitaMalate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court. The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens. The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable . A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant. Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls, movie theaters, gas stations, and cockpits. The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and

178 alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. B. The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property. The question of substantive due process, more so than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application. C. The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a discrete and insular minority or infringement of a fundamental right. Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation.

179 A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy, Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, after the Court declined to do so in Reed v. Reed. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel. If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. D. It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments have gained notoriety as venue of prostitution, adultery and fornications in Manila since they provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes and thrill-seekers. Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes: We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or

180 renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. E. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect wash rates from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. To be candid about it, the oft-quoted American maxim that you cannot legislate morality is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong. Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented. WHEREFORE, the Petition is GRANTED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. ********************************* An Ordinance requiring the motels in ErmitaMalate area to transfer to another place in the City of Manila as well as prohibiting THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA was held unconstitutional CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, et al vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, GR No. 118127, April 12, 2005

181

TINGA, J.: FACTS: The City Council of Manila enacted on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993 an Ordinance is entitled AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. The Ordinance is reproduced in full, hereunder: SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to: 1. Sauna Parlors 2. Massage Parlors 3. Karaoke Bars 4. Beerhouses 5. Night Clubs 6. Day Clubs 7. Super Clubs 8. Discotheques 9. Cabarets 10. Dance Halls 11. Motels 12. Inns SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of business enumerated in the preceding section. SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area, such as but not limited to:

182 1. Curio or antique shop 2. Souvenir Shops 3. Handicrafts display centers 4. Art galleries 5. Records and music shops 6. Restaurants 7. Coffee shops 8. Flower shops 9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family entertainment that cater to both local and foreign clientele. 10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like. 11. Businesses allowable within the law and medium intensity districts as provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral establishments. The Ordinance was questioned as an invalid exercise of police power and violative of the due process and equal protection clause of the 1987 Constitution. HELD: The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. The Ordinance contravenes the Constitution The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good. In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The relevant constitutional provisions are the following: SEC. 5. The 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. SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws. Sec. 9. Private property shall not be taken for public use without just compensation.

183 A. The Ordinance infringes the Due Process Clause The constitutional safeguard of due process is embodied in the fiat (N)o person shall be deprived of life, liberty or property without due process of law. . . . There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice, and as such it is a limitation upon the exercise of the police power. The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit of the general law. The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are persons within the scope of the guaranty insofar as their property is concerned. This clause has been interpreted as imposing two separate limits on government, usually called procedural due process and substantive due process. Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action. Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a persons life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the governments action. Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used. For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose. The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically as its exercise is subject to a qualification, limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property.

184 Requisites for the valid exercise of Police Power are not met To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights and a violation of the due process clause. The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of ErmitaMalate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila had already taken judicial notice of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-seekers. The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Councils police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy. While petitioners earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of wholesome, innocent establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of

185 the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. Means employed are constitutionally infirm The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the ErmitaMalate area or convert said businesses to other kinds of business allowable within the area. Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the premises of the erring establishment shall be closed and padlocked permanently. It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a persons fundamental right to liberty and property. Modality employed is unlawful taking In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property.[77] The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.[78] It is intrusive and violative of the private property rights of individuals. The Constitution expressly provides in Article III, Section 9, that private property shall not be taken for public use without just compensation. The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a persons property to benefit society, then society should pay. The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.[79] The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate area. In every sense, it qualifies

186 as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. The proffered solution does not put an end to the problem, it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation. Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property. The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising police power, be upheld as valid. B. The Ordinance violates Equal Protection Clause Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.[98] The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances.[99] The equal protection of the laws is a pledge of the protection of equal laws.[100] It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.[101] Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause.[103] The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements: 1) It must be based on substantial distinctions. 2) It must be germane to the purposes of the law. 3) It must not be limited to existing conditions only. 4) It must apply equally to all members of the class.[104] In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the

187 public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. Administrative Due Process before the Civil Service Commission does not require crossexamination of the complainant and his witnesses by the respondent. ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22, 2008 THE FACTS: Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office is located in San Fernando City, La Union. Respondent employees of the CHR Region I filed an AffidavitComplaint dated October 2, 1998 against petitioner alleging that he denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if he was using the said vehicle, and that he certified that he did not use any government vehicle, when in fact he did, in order to collect transportation allowance. Respondent filed his answer denying the allegations against him. After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of his receipt of the monthly transportation allowance and for certifying that he did not use any government vehicle, when in fact, he did, in order to receive the transportation allowance. Pertinent portions of the formal charge read: 1. That despite the regular receipt of Erece of his monthly Representation and Transportation Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the use of the office vehicle (Tamaraw FX) in spite of the directive from the Central Office that he cannot use the service vehicle for official purposes and at the same time receive his transportation allowance; 2. That Erece did not comply with the directive of the Central Office addressed to all Regional Human Rights Directors, as follows: to regularize your receipt of the transportation allowance component of the

188 RATA to which you are entitled monthly, you are hereby directed to immediately transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s) now still in your name; 3. That he certified in his monthly liquidation of his RATA that he did not use any government vehicle for the corresponding month, which is not true because he is the regular user of the government vehicle issued to CHR-Region I. The foregoing facts and circumstances indicate that government service has been prejudiced by the acts of Erece. WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region (CSC-CAR). On his Answer, he should indicate whether he elects a formal investigation or waives his right thereto. Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be entertained by the Commission. Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such. Likewise, he is advised of his right to the assistance of counsel of his choice.424[4] After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service. Petitioner filed a petition for review of the CSC Resolution with the CA. In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the Civil Service Commission are hereby AFFIRMED. Hence, this petition. I S S U E: Petitioner raised the issue of violation of his right to due process because he was denied the right to cross-examine the respondents on their affidavit-complaint. H E L D: Petitioner contends that he was denied due process as he was not afforded the right to cross-examine his accusers and their witnesses. He
424[4]

Id. at 35-36.

189 stated that at his instance, in order to prevent delay in the disposition of the case, he was allowed to present evidence first to support the allegations in his Counter-Affidavit. After he rested his case, respondents did not present their evidence, but moved to submit their position paper and formal offer of evidence, which motion was granted by the CSC over his (petitioners) objection. Respondents then submitted their Position Paper and Formal Offer of Exhibits. Petitioner submits that although he was allowed to present evidence first, it should not be construed as a waiver of his right to cross-examine the complainants. Although the order of presentation of evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost his right to cross-examine his accusers and their witnesses. This may be allowed only if he expressly waived said right. The Court agrees with the CA that petitioner was not denied due process when he failed to cross-examine the complainants and their witnesses since he was given the opportunity to be heard and present his evidence. In administrative proceedings, the essence of due process is simply the opportunity to explain ones side. Velez v. De Vera it was held that : Due process of law in administrative cases is not identical with judicial process for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. . . . The right to cross-examine is not an indispensable aspect of due process. Nor is an actual hearing always essential. . . . The dismissal of the petitioner from the government is valid. There is violation of the right to due process of law if a party he is declared as having waived the right to file his answer despite improper service of summons. DATUPAX MANGUDADATU VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), G.R. No. 179813, December 18, 2008

190 LEONARDO-DE CASTRO, J.: Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O. Montilla (private respondent) were congressional candidates for the First District of Sultan Kudarat during the May 14, 2007 national elections. Petitioner won by 17,451 votes and was proclaimed on May 22, 2007 by the Provincial Board of Canvassers as the duly elected Representative of the said congressional district. On May 31, 2007, respondent filed with the HRET a Petition of Protest (Ad Cautelam)425[4] contesting the results of the elections and the proclamation of petitioner. On June 14, 2007, the Secretary of the HRET caused the service of summons426[5] upon petitioner through registered mail at Purok Losaria,427[6] Tamnag (Poblacion), Lutayan, Sultan Kudarat, requiring petitioner to file an Answer to the protest within ten (10) days from receipt thereof.

On July 11, 2007, the HRET received the Registry Return Receipt Card, showing that a certain Aileen R. Baldenas429[8] (Baldenas) received the summons on June 27, 2007. On August 16, 2007, the HRET issued Resolution No. 07-179430[9] which noted the aforementioned Registry Return Receipt Card and that despite the fact that 43 days from June 27, 2007 had passed since Baldenas received the summons, petitioner had not filed an answer in accordance with Rule 27431[10] of the 2004 HRET Rules. In the same Resolution, the HRET considered petitioner to have entered a general denial of the allegations of the protest.
428[7]

In an Order dated August 17, 2007, the HRET set the preliminary conference on September 27, 2007 at 11:00 a.m.

Meanwhile, petitioner informally learned of respondents protest, prompting petitioner to request his lawyers to verify the same from the records of the HRET. Thereafter, his lawyers entered their appearance on September 4, 2007 and requested that they be furnished with copies of the petition of protest as well as notices, orders and resolutions pertaining to the protest.

425 426 427

[4] [5]

428 429

430 431

Id., pp. 41-76. Id., p. 77. [6] The assailed Resolutions state Loria but the Summons and Registry Return Receipt Card correctly state Losaria. [7] Rollo, p. 78. [8] The assailed Resolutions state Baldena; it should be Baldenas based on the Registry Return Receipt Card. [9] See Note 2. [10] RULE 27. Failure to Answer; Effect. If no answer is filed to the protest, counter-protest, or the petition for quo warranto within the period fixed in these Rules, a general denial shall be deemed to have been entered.

191 On September 10, 2007, petitioner filed a Motion to Reconsider432[11] Resolution No. 07-179 and Motion to Admit Answer with Counter-Protest, alleging that he never received the summons issued by the HRET. In his affidavit433[12] attached to the motion, petitioner denied that Baldenas was a member of his household or his employee. He further claimed that she was not authorized to receive any important documents addressed to him. And assuming that he had authorized her, the summons received by her was never brought to his attention.

On September 19, 2007, the HRET issued Resolution No. 07-300434[13] denying for lack of merit.

Hence, this petition.

Petitioner filed the instant petition imputing grave abuse of discretion amounting to lack of jurisdiction on the part of the HRET for issuing Resolution Nos. 07-179 and 07-300. He also prayed for a temporary restraining order and/or a writ of preliminary injunction for this Court to enjoin the HRET from further proceeding with HRET Case No.07-021. Petitioner contended that the HRET never acquired jurisdiction over his person because of the absence of a valid service of summons. He argued that a substitute service of summons is made only when the defendant cannot be served personally at a reasonable time after efforts to locate him have failed.435[14] In his case, since the process servers return failed to show on its face the impossibility of personal service, then the substituted service was improper and invalid.

In his comment, respondent countered that the HRET did not commit grave abuse of discretion in issuing Resolution Nos. 07-179 dated August 16, 2007 and 07-300 dated September 19, 2007. He argued that Rule 22 of the 2004 HRET Rules merely states that the Secretary of the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case may be. He posited then that the intent of the HRET in not expressly specifying personal service of summons on the protestee or respondent was to give it a reasonable discretion or leeway in serving the summons by other means such as registered mail. Thus, service of summons on petitioner through registered mail did not violate Rule 22 of the 2004 HRET Rules. Further, respondent claimed that Rule 14, Sections 6 and 7 of the Rules of Court were inconsistent with Rule 22 of the 2004 HRET Rules and therefore should not be given suppletory application to HRET proceedings.

432 433

Rollo, pp. 26-37. Id., p. 30. 434 [13] See Note 3. 435[14] Rollo, p.12.
[12]

[11]

192 HELD:

Rule 22 of the 2004 HRET Rules provides:

RULE 22. Summons. If the petition is not summarily dismissed in accordance with Rule 21 of these Rules, the Secretary of the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case may be, together with a copy of the petition, requiring him within ten (10) days from receipt thereof to file his answer. The 2004 HRET Rules on summons is silent on how the summons should be served on the protestee. Significantly, Rule 80 436[15] of the 2004 HRET Rules provides that the 1997 Rules of Civil Procedure applies by analogy or suppletorily in so far as the latter may be applicable and not inconsistent therewith as well as with the orders, resolutions and decisions of the HRET. In view of the failure of the HRET Rules to specify the authorized modes of service of summons, resort then is necessary to Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure, which state: SEC. 6. Service in person on defendant. Whenever practicable, the summons shall be served handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving copies at defendants office or regular place of business with some competent person in charge thereof. In the case at bar, the service of the summons was made through registered mail, which is not among the allowed modes of service under Rule 14 of the Rules of Court.

Indeed, if in ordinary civil cases (which involve only private and proprietary interests) personal service of summons is preferred and service by registered mail is not allowed on jurisdictional and due process grounds, with more reason should election cases (which involve public interest and the will
436
[15]

RULE 80. Applicability. The following shall be applicable by analogy or in suppletory character and effect in so far as they may be applicable and are not inconsistent with these Rules and with the orders, resolutions and decisions of the Tribunal, namely: (1) The Rules of Court; (2) Decisions of the Supreme Court; (3) Decisions of the Electoral Tribunals.

193 of the electorate) strictly follow the hierarchy of modes of service of summons under the Rules of Court.

The Court sees no reason why the HRET cannot make use of its own process servers to personally serve the summons, or alternatively, delegate the matter to the process server of a court with territorial jurisdiction over the place of residence of the respondent/protestee in the election case, at the expense of the petitioner/protestant. Considering that the proper service of summons on the respondent/protestee is a jurisdictional requirement and goes to heart of due process, we cannot allow service of summons by a method not sanctioned by the HRET Rules in relation to the Rules of Court. In view of the foregoing, we find that the HRET committed grave abuse of discretion in considering petitioner to have entered a general denial of the allegations in respondents petition of protest and in denying his motion to reconsider as well as his motion to admit answer with counterprotest.

The right to due process on the part of the respondent was violated when the Civil Service Commission reconsidered its earlier decision in favor of the former based on a Motion for Reconsideration wherein said respondent was not furnished a copy thereof nor given the chance to comment on it.

DEPARTMENT OF EDUCATION VS. GODOFREDO CUANAN, G.R. No. 169013, December 16, 2008 The factual background of the case is as follows: On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their respective minor daughters, Lily Borja and Charo Castro, filed before the Department of Education, Culture and Sports - Regional Office No. III (DECS-RO No. III), Cabanatuan City, two separate administrative complaints for Sexual Harassment and Conduct Unbecoming a Public Officer against Cuanan, then Principal of Lawang Kupang Elementary School in San Antonio, Nueva Ecija. Acting on the complaints, DECS-RO No. III Regional Director Vilma L. Labrador constituted an Investigating Committee, composed of three DepEd officials from the province, to conduct a formal investigation. Following the investigation, the Investigating Committee submitted its Investigation Report dated December 14, 1999, finding Cuanan guilty of sexual harassment and recommending his forced resignation without prejudice to benefits. In a Decision dated January 28, 2000, Regional Director Labrador concurred in the findings of the Investigating Committee and meted out the penalty of forced resignation to Cuanan without prejudice to benefits.

194 In an Order dated April 13, 2000, then DepEd Secretary Andrew Gonzales affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan filed a Petition for Reconsideration thereof, but the same was denied for lack of merit by Secretary Gonzales in a Resolution dated June 19, 2000. Cuanan elevated his case to the CSC. On January 20, 2003, the CSC issued Resolution No. 030069 , which set aside the June 19, 2000 Resolution of Secretary Gonzales and exonerated Cuanan from the charge of sexual harassment. On January 23, 2003, copies of the resolution were duly sent to the parties, including the DepEd , Cuanan received a copy of Resolution No. 030069 on January 31, 2003 . In a Letter dated February 3, 2003, Cuanan requested his reinstatement as Elementary School Principal I . In a 1st Indorsement, the District Supervisor recommended appropriate action. In a 2nd Indorsement dated February 4, 2003, Schools Division Superintendent Dioscorides D. Lusung (Superintendent) recommended that Cuanan be reinstated to duty as School Principal of San Antonio District upon finality of the decision of the CSC . In a Letter dated February 10, 2003, Regional Director Ricardo T. Sibug informed the Superintendent that Cuanan could not be immediately reinstated to the service until an order of implementation was received from the Department Secretary. Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon sent a letter to the CSC requesting a copy of CSC Resolution No. 030069 dated January 20, 2003. In a Letter dated March 25, 2003, the CSC informed the DepEd that a copy of the requested resolution was duly sent to it on January 23, 2003. Nonetheless, the CSC sent another copy of the resolution to the DepEd for its reference. The DepEd received said reference copy on March 28, 2003. On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a Petition for Review/Reconsideration with the CSC. No copy of the pleading was served upon Cuanan. On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for Review/Reconsideration reiterating the prayer for reversal of the resolution. Again, no copy of the pleading was served upon Cuanan. Subsequently, pursuant to Division Special Order No. 001 series of 2003 dated June 18, 2003, Cuanan was reinstated to his former position as school principal effective April 30, 2003 In Division Special Order No. 285, series of 2003 dated July 8, 2003, Cuanan was directed to return to duty . Based thereon, Cuanan requested payment of salaries and his inclusion in the payroll, which the Division School Superintendent of Nueva Ecija duly endorsed on November 7, 2003 . However, on October 22, 2004, the CSC issued Resolution No. 041147 setting aside CSC Resolution No. 030069 dated January 20, 2003. It found Cuanan guilty of Sexual Harassment, Grave Misconduct and Conduct Grossly Prejudicial to the Best Interest of the Service and meted out the penalty of dismissal from the service with forfeiture of retirement benefits, cancellation of his service eligibility, and perpetual disqualification from holding public office. Cuanan received a copy of the Resolution on November 9, 2004 .

195 Thirteen days later, or on November 22, 2004, Cuanan filed a petition for certiorari with the CA seeking to annul Resolution No. 041147, alleging that the CSC should not have entertained the petition for review/reconsideration since the DepEd was not the complainant or the party adversely affected by the resolution; that the petition for review/reconsideration was filed out of time; and that Cuanan was not furnished copies of the pleadings filed by the DepEd in violation of procedural due process. The DepEd sought the dismissal of the petition on the ground of improper remedy, the mode of review from a decision of the CSC being a petition for review under Rule 43 of the Rules of Court. On May 16, 2005, the CA rendered a Decision granting the petition for certiorari and setting aside CSC Resolution No. 041147 dated October 12, 2004. The CA held that while a motion for reconsideration and a petition for review under Rule 43 were available remedies, Cuanan's recourse to a petition for certiorari was warranted, since the act complained of was patently illegal; that the CSC gravely abused its discretion in granting the petition for review/reconsideration filed by the DepEd without regard for Cuanan's fundamental right to due process, since he was not duly notified of the petition for review/reconsideration, nor was he required by the CSC to file a comment thereon, much less, given a copy of the said petition; that the DepEd failed to establish that the resolution was not yet final and executory when it filed its petition for review/reconsideration. DepEd filed a Motion for Reconsideration but the CA denied the same in its Resolution dated July 18, 2005. Hence, the present petition on the following grounds: I WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN TAKING COGNIZANCE OF THE PETITION IN CAG.R. SP NO. 87499, THE SAME NOT BEING THE PROPER REMEDY IN ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22, 2004. II WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN ADJUDGING CSC AS HAVING COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING RESOLUTION NO. 041147 DATED OCTOBER 22, 2004 . DepEd contends that the CA should have dismissed outright the petition for certiorari because CSC decisions are appealable to the CA by petition for review under Rule 43; that the filing of a motion for reconsideration was a precondition to the filing of a petition for certiorari under Rule 65; that the DepEd, even if not the complainant, may question the resolution of the CSC; that Cuanan failed to prove that the CSC's petition for review/reconsideration was not seasonably filed; that even if Cuanan was not served a copy of the pleadings filed by the DepEd, the CSC was not bound by procedural rules.

196

Cuanan, on the other hand, contends that the DepEd cannot file a motion for reconsideration from the CSC Resolution exonerating him, since it is not the complainant in the administrative case and therefore not a party adversely affected by the decision therein; that even if DepEd may seek reconsideration of the CSC Resolution, the petition for review/reconsideration was filed out of time; and that Cuanans right to due process was violated when he was not given a copy of the pleadings filed by the DepEd or given the opportunity to comment thereon. The Court finds it necessary, before delving on the grounds relied upon by the DepEd in support of the petition, to first resolve the question of whether the DepEd can seek reconsideration of the CSC Resolution exonerating Cuanan. In a long line of cases, beginning with Civil Service Commission v. Dacoycoy , and reiterated in Philippine National Bank v. Garcia, Jr ., the Court has maintained that the disciplining authority qualifies as a party adversely affected by the judgment, who can file an appeal of a judgment of exoneration in an administrative case. CSC Resolution No. 021600 allows the disciplining authority to appeal from a decision exonerating an erring employee, thus: Section 2. Coverage and Definition of Terms. x x x (l) PARTY ADVERSELY AFFECTED refers to the respondent against whom a decision in a disciplinary case has been rendered or to the disciplining authority in an appeal from a decision exonerating the said employee. (Emphasis supplied) Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to a motion for reconsideration by the DepEd which, as the appointing and disciplining authority, is a real party in interest. Now, as to the merits of DepEd's arguments, the Court finds none. The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule 43 of the Rules of Court within fifteen days from notice of the resolution. Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule, to wit: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority . As will be shown forthwith, exception (c) applies to the present case. Furthermore, while a motion for reconsideration is a condition precedent to the filing of a petition for certiorari, immediate recourse to the extraordinary remedy of certiorari is warranted where the order is a patent nullity, as where the court a quo has no jurisdiction; where petitioner was deprived of due process and there is extreme urgency for relief; where the proceedings in the lower court are a nullity for lack of due process; where the proceeding was ex parte or one in which the petitioner had no opportunity to object . These exceptions find application to Cuanan's petition for certiorari in the CA.

197 At any rate, Cuanan's petition for certiorari before the CA could be treated as a petition for review, the petition having been filed on November 22, 2004, or thirteen (13) days from receipt on November 9, 2004 of CSC Resolution No. 041147, clearly within the 15-day reglementary period for the filing of a petition for review . Such move would be in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice . Furthermore, CSC Resolution No. 030069 has long become final and executory. It must be noted that the records show that copies of CSC Resolution No. 030069 were duly sent to the parties, including DepEd, on January 23, 2003 . Cuanan received a copy thereof on January 31, 2003 while the DepEd requested a copy sometime in March 2003, or about two months later. Under the Rules of Evidence, it is presumed that official duty has been regularly performed, unless contradicted . This presumption includes that of regularity of service of judgments, final orders or resolutions. Consequently, the burden of proving the irregularity in official conduct -- that is, non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the part of the DepEd, which in the present case clearly failed to discharge the same . Thus, the presumption stands that CSC Resolution No. 030069 dated January 20, 2003 had already become final and executory when the DepEd filed its Petition for Review/Reconsideration on April 11, 2003, more than two months later. It is elementary that once judgment has become final and executory, it becomes immutable and can no longer be amended or modified. In Gallardo-Corro v. Gallardo , this Court held: Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice, and that, at the risk of occasional errors, the judgments or orders of courts must become final at some definite time fixed by law; otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality . Moreover, while it is true that administrative tribunals exercising quasijudicial functions are free from the rigidity of certain procedural requirements, they are bound by law and practice to observe the fundamental and essential requirements of due process in justiciable cases presented before them . The relative freedom of the CSC from the rigidities of procedure cannot be invoked to evade what was clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations that all administrative bodies cannot ignore or disregard the fundamental and essential requirements of due process.

198 Furthermore, Section 43.A of the Uniform Rules in Administrative Cases in the Civil Service provides: Section 43.A. Filing of Supplemental Pleadings. - All pleadings filed by the parties with the Commission, shall be copy furnished the other party with proof of service filed with the Commission. Any supplemental pleading to supply deficiencies in aid of an original pleading but which should not entirely substitute the latter can be filed only upon a favorable action by the Commission on the motion of a party to the case. The said motion should be submitted within five (5) days from receipt of a copy of the original pleading and it is discretionary upon the Commission to allow the same or not or even to consider the averments therein.(Emphasis supplied) Cuanan undoubtedly was denied procedural due process. He had no opportunity to participate in the proceedings for the petition for review/ reconsideration filed by the DepEd, since no copy of the pleadings filed by the DepEd were served upon him or his counsel; nor was he even required by the CSC to file his comments thereon. Considering that pleadings filed by the DepEd were not served upon Cuanan, they may be treated as mere scraps of paper which should not have merited the attention or consideration of the CSC. WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED. There is no violation of the petitioners right to due process when after the election protest against him was already submitted for decision and the ballots transferred to the Senate Electoral Tribunal, the COMELEC went to deliberate on the case at the Senate Electoral Tribunal using the ballots therein in the process without notice to the petitioner. JOSELITO MENDOZA VS. COMELEC and ROBERTO PAGDANGANAN, G.R. No. 188308, October 15, 2009 BRION, J.: The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of Governor. The respondent seasonably filed an election protest with the COMELEC, which was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was conducted at the COMELECs office in Intramuros.

199 After revision, the parties presented their other evidence, leading to the parties formal offer of their respective evidence. The COMELEC approved the parties formal offer of evidence and then required the parties to submit their respective memoranda. The parties complied with the COMELECs order. The case was thereafter submitted for resolution. On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend further proceedings. . The COMELECs Second Division denied the petitioners motion in its Order of April 29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of the election protest; thus, it concluded that it would continue the proceedings after proper coordination with the SET. The petitioner moved to reconsider this Order, but the COMELECs Second Division denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELECs continued action specifically, the appreciation of ballots on the provincial election contest at the SET offices---which the COMELEC did without informing the petitioner. Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioners counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings.437[2] The SET Secretary responded on June 17, 2009 as follows: x x x please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle. Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that (t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern. While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested. [emphasis supplied]438[3] ISSUE:

437[2] 438[3]

See Petition, p. 12. Rollo, p. 45.

200 A. WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER. The petitioner argues that the election protest involves his election as Governor; thus, its subject matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims entitlement to notice and participation in all matters that involve or are related to the election protest. He further asserts that he had the legitimate expectation that no further proceedings would be held or conducted in the case after its submission for decision. Citing the commentaries of Father Joaquin Bernas,439[4] the petitioner argues that the proceedings before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of judicial due process specifically, (a) opportunity to be heard and (b) that judgment be rendered only after lawful hearing apply. Notices in judicial dispute, he claims, are not really just a matter of courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a party to be heard. He further cites Justice Isagani A. Cruz,440[5] who wrote: x x x Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interest. The petitioner claims that without notice to him of the proceedings, the due process element of the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial proceeding held without notice to the parties could be described as a lawful hearing, especially a proceeding which has as its subject matter the sovereign will of an entire province. He was therefore denied his day in court, he claims, when the COMELEC conducted the examination and appreciation of ballots. The proceedings should be stopped and declared null and void; its future results, too, should be nullified, as nothing derived from the anomalous and unconstitutional clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should not be admitted for any purpose and/or in any judicial proceeding. HELD: The petition is anchored on the alleged conduct of proceedings in the election protest following the completed revision of ballots at the SET premises without notice to and without the participation of the petitioner. Significantly, the conduct of proceedings is confirmed by the SET Secretary in the letter we quoted above.441[8] As the issues raised show the petitioners focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the
439[4] 440[5]

J. Bernas, Constitutional Structure and Powers of Government, 2005, pp. 718-719. I. Cruz, Constitutional Law, 2003, p. 14. 441[8] Supra note 3.

201 focus is on what the COMELEC did after to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed.442[9] The substantive issue we are primarily called upon to resolve is whether there were proceedings within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in other words, the issue is whether the petitioners right to due process has been violated. A finding of due process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of discretion. As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises judicial power in its action over provincial election contests and has argued its due process position from this view. We take this opportunity to clarify that judicial power in our country is vested in one Supreme Court and in such lower courts as may be established by law.443[10] This exclusive grant of authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the Constitution which further states that Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.. ., thus constitutionally locating the situs of the exercise of judicial power in the courts. In contrast with the above definitions, Section 2, Article IX(C) of the Constitution lists the COMELECs powers and functions, among others, as follows: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay officials shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature

442[9]

See Section 3, Rule 64 of the Rules of Court. The petitioner received the COMELEC Resolution denying his motion for reconsideration on June 1, 2009. Thirty (30) days later or on July 1, 2009, he filed a motion for extension of time to file the petition. The petition cannot but be late because of the remainder rule under Section 3, Rule 64. 443[10] Section 1 (first paragraph), Article VIII, 1987 Constitution.

202 (i.e., to enforce and administer election laws),444[11] quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure). The COMELECs adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature;445[12] it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders judgment.446[13] Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense;447[14] hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial. The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial Relations,448[16] quoted below: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. xxx (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached. (4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial. "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

444[11] 445[12]

Ututalum v. Commission on Elections, G.R. No. L-25349, December 3, 1965, 15 SCRA 465. See: Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989, 171 SCRA 348; Midland Insurance Corporation v. IAC, No. L-71905, August 13, 1986, 143 SCRA 458. 446[13] See: Cario v. Commission on Human Rights, G.R. No. 96681, December 2, 1991, 204 SCRA 483, on the activities encompassed by the exercise of quasi-judicial power. 447[14] See: Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45, citing Sandoval v. COMELEC, 323 SCRA 403 [2000]. 448[16] 69 Phil. 635 (1940).

203 (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. These are now commonly referred to as cardinal primary rights in administrative proceedings. The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. 449[17] A formal or trialtype hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process. The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decisionmaking. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a subordinate, must be based on substantial evidence.450[18] Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decisionmaking due process rights and is similar in substance to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is based.451[19] As a component of the rule of fairness that underlies due process, this is the duty to give reason to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker.
449[17] 450[18]

Bautista v. Comelec, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299. Supra note 17. 451[19] CONSTITUTION, Article VIII, Section 14; See Solid Homes, Inc. v. Laserna, G.R. No. 166051, April 8, 2008, 550 SCRA 613.

204

In the present case, the petitioner invokes both the due process component rights at the hearing and deliberative stages and alleges that these component rights have all been violated. We discuss all these allegations below. The Right to Notice and to be Heard. a. At the Hearing and Revision of Ballots. Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the proceedings of the election protest until the case was deemed submitted for resolution; he had representation at the revision of the ballots, duly presented his evidence, and summed up his case through a memorandum. These various phases of the proceedings constitute the hearing proper of the election contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing stage rights require. In these proceedings, the petitioner stood head-to-head with the respondent in an adversarial contest where both sides were given their respective rights to speak, make their presentations, and controvert each others submission, subject only to established COMELEC rules of procedures. Under these undisputed facts, both parties had their day in court, so to speak, and neither one can complain of any denial of notice or of the right to be heard. b. At the Proceedings at the SET. A critical question to be answered in passing upon due process questions at this stage of the election contest is the nature of the so-called proceedings after the ballots and other materials pertinent to the provincial election contest were transferred to the SET. In the petition, the petitioner alleged that there were strange proceedings452[20] which were unilateral, clandestine and surreptitious within the premises of the SET, on documents, ballots and election materials whose possession and custody have been transferred to the SET, and the petitioner was NEVER OFFICIALLY NOTIFIED of the strange on-goings at the SET.453[21] Attached to the petition was the letter of the Secretary of the SET confirming the conduct of proceedings in the provincial election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the COMELEC, the SET and the courts so as not to delay or interrupt the revision of ballots being conducted. While the SET letter made the reservation that While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested, no mention whatsoever was made of the kind of proceedings taking place.

452[20] 453[21]

Rollo, p. 12. Id., p. 13.

205 It was at this point that this Court intervened, in response to the petitioners prayer for the issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible directive for the respondents to file their comments on the petition; for indeed, any further revision of ballots or other adversarial proceedings after the case has been submitted for resolution, would not only be strange and unusual but would indicate a gross violation of due process rights. After consideration of the respondents Comments and the petitioners petition and Reply, we hold that the contested proceedings at the SET (contested proceedings) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioners Reply:454[22] However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting further proceedings requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality. In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged.455[23] We find it significant that the private respondents Comment fully supported the COMELECs position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest. To conclude, the rights to notice and to be heard are not material considerations in the COMELECs handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.
454[22] 455[23]

COMELEC Comment; rollo, pp. 72-S and 72-T. See Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.

206 Alleged Violations of Deliberation Stage Rights. On the basis of the above conclusion, we see no point in discussing any alleged violation of the deliberative stage rights. First, no illegal proceeding ever took place that would bear the poisonous fruits that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the standards of the due process deliberative stages rights before the COMELEC renders its decision. Expressed in terms of our standard of review, we have as yet no basis to determine the existence of any grave abuse of discretion. Conduct of COMELEC Deliberations at the SET Premises We turn to the issue of the propriety of the COMELECs consideration of the provincial election contest (specifically its appreciation of the contested ballots) at the SET premises and while the same ballots are also under consideration by the SET for another election contest legitimately within the SETs own jurisdiction. We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of jurisdiction.456[24] Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern (the Senate election contests for the SET, and the regional, provincial and city election contests for the COMELEC), and with neither one being higher than the other in terms of precedence so that the jurisdiction of one must yield to the other. But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that only a single ballot exists in an election for national and local officials, saw it fit to lay down the rule on the order of preference in the custody and revision of ballots and other documents contained in the ballot boxes. The order, in terms of the adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs: 1.
456[24]

Presidential Electoral Tribunal;

See: Ramos v. Central Bank of the Philippines, No. L-29352, October 4, 1971, 41 SCRA 565; Bengzon v. Inciong, Nos. L-48706-07, June 29, 1079, 91 SCRA 248; Baltazar v. CA, 104 SCRA 619 [1981]; Ramos v. Our Lady of Peace School, No. L-55950, December 26, 1984, 133 SCRA 741; Lee v. Presiding Judge, MTC Legazpi City, No. L-68789, November 10, 1986, 145 SCRA 408.

207 2. 3. 4. 5. Senate Electoral Tribunal; House of Representatives Electoral Tribunal; Commission on Elections; and Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials in Bulacans provincial election contest, had to be transferred to the SET when the latter needed these materials for its revision of ballots. The transfer to the SET, however, did not mean that the Bulacan provincial election contest at that time already submitted for decision had to be suspended as the COMELEC held in its Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44.457[25] This is particularly true in Bulacans case as no revision had to be undertaken, the revision having been already terminated. WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately. KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006 BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

Carpio, J. President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the Executive Department. This is so despite the fact that the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No. 308[National computerized Identification Reference System] issued by then President Fidel V. Ramos that the same is unconstitutional because a national ID card system requires legislation because it creates a new national data collection and card issuance system, where none existed before. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizens right to privacy. Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on two (2) grounds: a. usurpation of legislative powers; and b. it infringes on the citizens right to privacy Held: The said Executive Order No. 420 does not violate the citizens right to privacy since it does not require all the citizens to be issued a national ID as what
457[25]

Rollo, pp. 29-34.

208 happened in AO 308. Only those dealing or employed with the said government entities who are required to provide the required information for the issuance of the said ID. It is part of the power of the President under Section 17, Art. VII of the Constitution. BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006 AZCUNA, J.: The Facts: Petitioners come in three groups. The first petitioners, Bayan, et al., in G.R. No. 169838, allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880. The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848, who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they claim, put the country under an undeclared martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries. The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881, allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of Calibrated Preemptive Response (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU cosponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They

209 were then forcibly dispersed, causing injuries on one of them. Three other rallyists were arrested. All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the no permit, no rally policy and the CPR policy recently announced. B.P. No. 880, The Public Assembly Act of 1985, provides: Batas Pambansa Blg. 880 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes Be it enacted by the Batasang Pambansa in session assembled: SECTION 1. Title . This Act shall be known as The Public Assembly Act of 1985. SEC. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. SEC. 3. Definition of terms. For purposes of this Act: (b) Public place shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza square, and/or any open space of public ownership where the people are allowed access. (c) Maximum tolerance means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. SEC. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. SEC. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines:

210 1. The applications shall be in writing and shall include names of the leaders or organizers; the purpose of such public assembly; date, time and duration thereof, and place or streets to be used for intended activity; and the probable number of persons participating, transport and the public address systems to be used. the the the the

2. The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. 3. The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. 4. Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. SEC. 6. Action to be taken on the application. 1. It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. 2. The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. 3. If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. 4. The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. 5. If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. 6. In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting

211 such permit or modifying if in terms satisfactory to the applicant shall be immediately executory. 7. All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. 8. Court. CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex A to the Petition in G.R. No. 169848, thus: Malacaang Manila, Philippines Release No. 2 Official NEWS September 21, 2005 In all cases, any decision may be appealed to the Supreme

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA On Unlawful Mass Actions In view of intelligence reports pointing to credible plans of antigovernment groups to inflame the political situation, sow disorder and incite people against the duty constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations. The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community. Unlawful mass actions will be dispersed. The majority of lawabiding citizens have the right to be protected by a vigilant and proactive government. We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society. The Presidents call for unity and reconciliation stands, based on the rule of law. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil

212 and Political Rights and other human rights treaties of which the Philippines is a signatory. They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words lawful cause, opinion, protesting or influencing suggest the exposition of some cause not espoused by the government. Also, the phrase maximum tolerance shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent. Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble. I s s u e s: 1. 1. 2. 3. 4. 5. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:

Are these content-neutral or content-based regulations? Are they void on grounds of overbreadth or vagueness? Do they constitute prior restraint? Are they undue delegations of powers to Mayors? Do they violate international human rights treaties and the Universal Declaration of Human Rights?

213 2. 1. 2. 3. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

Is the policy void on its face or due to vagueness? Is it void for lack of publication? Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005? H e l d: Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit. Section 4 of Article III of the Constitution provides: SEC. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA, the Court, as early as the onset of this century, in U.S. v. Apurado already upheld the right to assembly and petition, as follows: There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge: It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders

214 over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. Again, in Primicias v. Fugoso, the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said: The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign police power, which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils enact ordinances for purpose Reyes v. Bagatsing further expounded on the right and its limits, as follows: 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances. Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of a substantive evil that [the

215 State] has a right to prevent. Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the right of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution. What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to nonpeaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high

216 pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage of, Justice Roberts in Hague v. CIO: Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of respondents, be abridged or denied. The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza being a promenade for public use, which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta. 4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech

217 and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. xxx 6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be abridged on the plea that it may be exercised in some other place. xxx 8. By way of a summary. [a] The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. [b] If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. [c] Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. [d] It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for

218 the decision reached. [e] If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. [f] Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes: Reyes v. Bagatsing (G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569) 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is B.P. No. 880

SEC. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies

219 of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. held during any election campaign period as provided for by law are not covered by this Act. SEC. 5. Application requirements.-All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. SEC. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue

220 or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twentyfour hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the

221 Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,458 where the Court referred to it as a content-neutral regulation of the time, place, and manner of holding public assemblies.459 A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies460 that would use public places. The reference to lawful cause does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be peaceable and entitled to protection. Neither are the words opinion, protesting and influencing in the definition of public assembly content
458 459 460

G.R. No. 132231, March 31, 1998, 288 SCRA 447. Ibid, p. 478. Except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute, which are governed by the Labor Code and other labor laws; political meeting or rallies held during any election campaign period, which are governed by the Election Code and other election related laws; and public assemblies in the campus of a government-owned and operated educational institution, which shall be subject to the rules and regulations of said educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880).

222 based, since they can refer to any subject. The words petitioning the government for redress of grievances come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to imminent and grave danger of a substantive evil in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 7160461 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time: SEC. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable freedom park or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. 2
461

The Local Government Code. Specifically, Section 16 stating the general welfare clause, thus: SEC. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

223 The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus: The truth of the matter is the policy of calibrated preemptive response is in consonance with the legal definition of maximum tolerance under Section 3 (c) of B.P. Blg. 880, which is the highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same. Unfortunately, however, the phrase maximum tolerance has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be tolerated. Clearly, the popular connotation of maximum tolerance has departed from its real essence under B.P. Blg. 880. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that maximum tolerance is not in conflict with a no permit, no rally policy or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed. None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict

224 freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, maximum tolerance is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger standard. WHEREFORE, the petitions are GRANTED in part, and Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance. Closing a radio station is definitely prior restraint NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING SYSTEM, INC.HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, G.R. Nos. 170270 &179411, April 2, 2009 TINGA, J.: Bombo Radyo Philippines (Bombo Radyo) operates several radio stations under the AM and FM band throughout the Philippines. These stations are operated by corporations organized and incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting Network, Inc. (Newsounds) and Consolidated Broadcasting System, Inc. (CBS). Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station operating out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan (Star FM), also operating out of Cauayan City, airing on the FM band. The service areas of DZNC and Star FM extend from the province of Isabela to throughout Region II and the Cordillera region.462[6] THE ONLY OTHER STATION OPERATING IN CAUAYAN CITY, ISABELA, is owned by the family of respondent Mayor Dy. In 1996, Newsounds commenced relocation of its broadcasting stations, management office and transmitters on property located in Minante 2, Cauayan City, Isabela. The property is owned by CBS Development Corporation (CDC), an affiliate corporation under the Bombo Radyo network which holds title over the properties used by Bombo Radyo stations throughout the country.463[7] On 28 June 1996, CDC was issued by the then municipal government of Cauayan a building permit authorizing the construction of a commercial establishment on the property.464[8] On 5 July 1996, the Housing and Land Use Regulatory Board (HLURB) issued a
462 [6] 463 [7] 464 [8]

Rollo (G.R. No. 179411), p. 13. Id. Id. at 90.

225 Zoning Decision certifying the property as commercial.465[9] That same day, the Office of the Municipal Planning and Development Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be constructed by CDC conformed to local zoning regulations, noting as well that the location is classified as a Commercial area.466[10] Similar certifications would be issued by OMPDC from 1997 to 2001.467[11] A building was consequently erected on the property, and therefrom, DZNC and Star FM operated as radio stations. Both stations successfully secured all necessary operating documents, including mayors permits from 1997 to 2001.468[12] During that period, CDC paid real property taxes on the property based on the classification of the land as commercial.469[13] All that changed beginning in 2002. On 15 January of that year, petitioners applied for the renewal of the mayors permit. The following day, the City Assessors Office in Cauayan City noted on CDCs Declaration of Real Property filed for 2002 confirmed that based on the existing file, CDCs property was classified as commercial. 470[14] On 28 January, representatives of petitioners formally requested then City Zoning Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning clearance for the property.471[15] Maximo, however, required petitioners to submit either an approved land conversion papers from the Department of Agrarian Reform (DAR) showing that the property was converted from prime agricultural land to commercial land, or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the property from agricultural to commercial land.472[16] Petitioners had never been required to submit such papers before, and from 1996 to 2001, the OMPDC had consistently certified that the property had been classified as commercial. THEREAFTER, THE MUNICIPAL OFFICIALS PADLOCKED THE RADIO STATIONS BASED ON THE GROUND THAT THE PETITIONERS FAILED TO SUBMIT THE requisite zoning clearance needed for the issuance of the mayors permit because there was allegedly no DAR Decision converting said land from agricultural to commercial. Petitioners filed a petition for mandamus, docketed as SCA No. 20171, with the RTC of Cauayan City, Branch 20 to compel the municipality to allow the radio stations to operate. The petition was accompanied by an application for the issuance of temporary restraining order and writ of
465[9]
466 [10] 467 [11] 468 [12] 469 [13] 470 [14] 471 [15]

Id. at 91.

Id. at 92. Id. at 93-97. Id. at 98-102. Id. at 103-110. Id. at 103. Id. at 111. Id. at 18-19.

472 [16]

226 preliminary prohibitory injunction, both provisional reliefs being denied by the RTC through an Order dated 20 April 2004. Thereafter, the petition was dismissed by the RTC as well as the Court of Appeals. Hence, this case before the Supreme Court. I S S U E: Is the closure of the petitioners radio stations constitutional? HELD: The closure constitutes prior restraint. The fundamental constitutional principle that informs our analysis of both petitions is the freedom of speech, of expression or the press. 473[32] Free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent.474[33] Petitioners have taken great pains to depict their struggle as a textbook case of denial of the right to free speech and of the press. In their tale, there is undeniable political color. They admit that in 2001, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty.475[34] Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a former assistant station manager at petitioners own DZNC Bombo Radyo.476[35] A rival AM radio station in Cauayan City, DWDY, is owned and operated by the Dy family.477[36] Petitioners likewise direct our attention to a 20 February 2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending to file disenfranchisement proceedings against DZNC-AM.478[37] The following undisputed facts bring the issue of free expression to fore. Petitioners are authorized by law to operate radio stations in Cauayan City, and had been doing so for some years undisturbed by local authorities.
473 [32] 474 [33] 475 [34] 476 [35] See TJ Burgonio, Isabela gov who ended a dynasty wins RM prize, Philippine Daily Inquirer (1 August 2008), at http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view /20080801-151950/Isabela-gov-who-endeda-dynasty-wins-RM-prize 477 [36] 478 [37]

Article 3, Sec. 4. Gonzales v. COMELEC, 137 Phil. 471, 492 (1969). Rollo (G.R. No. 170270), p. 27.

Rollo (G.R. No. 170270), p. 17. Rollo (G.R. No. 179411), p. 142.

227 Beginning in 2002, respondents in their official capacities have taken actions, whatever may be the motive, that have impeded the ability of petitioners to freely broadcast, if not broadcast at all. These actions have ranged from withholding permits to operate to the physical closure of those stations under color of legal authority. While once petitioners were able to broadcast freely, the weight of government has since bore down upon them to silence their voices on the airwaves. An elementary school child with a basic understanding of civics lessons will recognize that free speech animates these cases. Without taking into account any extenuating circumstances that may favor the respondents, we can identify the bare acts of closing the radio stations or preventing their operations as an act of prior restraint against speech, expression or of the press. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.479[38] While any system of prior restraint comes to court bearing a heavy burden against its constitutionality,480[39] not all prior restraints on speech are invalid.481[40] That the acts imputed against respondents constitute a prior restraint on the freedom of expression of respondents who happen to be members of the press is clear enough. There is a long-standing tradition of special judicial solicitude for free speech, meaning that governmental action directed at expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior.482[41] We had said in SWS v. COMELEC: Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint. There is thus a reversal of the normal presumption of validity that inheres in every legislation.483[42] At the same time, jurisprudence distinguishes between a contentneutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.484[43] Content-based laws are generally treated as more suspect than content-neutral laws because
479 [38] 480 [39] Social Weather Stations, Inc. v. COMELEC, 409 Phil. 571, 585 (2001); citing New York Times v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971). 481 [40] 482 [41] 483 [42] 484 [43]

Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 491.

Chavez v. Gonzales, G.R. No. 168335, 15 February 2008, 545 SCRA 441, 492. GUNTHER, et al., CONSTITUTIONAL LAW (14th ed., 2001), at 964. SWS v. COMELEC, supra note 39. Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, 545 SCRA 441, 493.

228 of judicial concern with discrimination in the regulation of expression.485[44] Content-neutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny.486[45] Ostensibly, the act of an LGU requiring a business of proof that the property from which it operates has been zoned for commercial use can be argued, when applied to a radio station, as content-neutral since such a regulation would presumably apply to any other radio station or business enterprise within the LGU. However, the circumstances of this case dictate that we view the action of the respondents as a content-based restraint. In their petition for mandamus filed with the RTC, petitioners make the following relevant allegations: 6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in discussing public issues that include, among others, the conduct of public officials that are detrimental to the constituents of Isabela, including Cauayan City. In view of its wide coverage, DZNC has been a primary medium for the exercise of the people of Isabela of their constitutional right to free speech. Corollarily, DZNC has always been at the forefront of the struggle to maintain and uphold freedom of the press, and the peoples corollary right to freedom of speech, expression and petition the government for redress of grievances. 6.2. Newsounds only rival AM station in Cauayan and the rest of Isabela, DWDY, is owned and operated by the family of respondent Dy.487[46] xxxx 35. Respondents closure of petitioners radio stations is clearly tainted with ill motives. 35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty. It is just too coincidental that it was only after the 2001 elections (i.e., 2002) that the Mayors Office started questioning petitioners applications for renewal of their mayors permits. 35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004, respondent Dy was quoted as saying that he will disenfranchise the radio station. Such statement manifests and confirms that respondents denial of petitioners renewal applications on the ground that the Property is commercial is merely a pretext and that their real agenda is to
485 [44] 486 [45] 487 [46]

GUNTHER, et al., supra note 44. Id. at 957. Rollo (G.R. No. 179411), p. 170.

229 remove petitioners from Cauayan City and suppress the latters voice. This is a blatant violation of the petitioners constitutional right to press freedom. 35.3. The timing of respondents closure of petitioners radio stations is also very telling. The closure comes at a most critical time when the people are set to exercise their right of suffrage. Such timing emphasizes the ill motives of respondents.488[47] All those circumstances lead us to believe that the steps employed by respondents to ultimately shut down petitioners radio station were ultimately content-based. The United States Supreme Court generally treats restriction of the expression of a particular point of view as the paradigm violation of the First Amendment.489[53] The facts confronting us now could have easily been drawn up by a constitutional law professor eager to provide a plain example on how free speech may be violated. The Court is of the position that the actions of the respondents warrant heightened or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.490[54] The immediate implication of the application of the strict scrutiny test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners constitutional rights. As content regulation cannot be done in the absence of any compelling reason,491[55] the burden lies with the government to establish such compelling reason to infringe the right to free expression. It is thus evident that respondents had no valid cause at all to even require petitioners to secure approved land conversion papers from the DAR showing that the property was converted from prime agricultural land to commercial land. That requirement, assuming that it can be demanded by a local government in the context of approving mayors permits, should only obtain upon clear proof that the property from where the business would operate was classified as agricultural under the LGUs land use plan or zoning ordinances and other relevant laws. No evidence to that effect was presented by the respondents either to the petitioners, or to the courts. Having established that respondents had violated petitioners legal and constitutional rights, let us now turn to the appropriate reliefs that should be granted.

488 [47] 489 [53] 490 [54] 491 [55]

Id. at 178-179. GUNTHER et. al., supra note 44. See White Light v. Court of Appeals, G.R. No. 122846, 20 January 2009. Osmea v. COMELEC, 351 Phil. 692, 711 (1998).

230 We turn to the issue of damages. Petitioners had sought to recover from respondents P8 Million in temperate damages, P1 Million in exemplary damages, and P1 Million in attorneys fees. Given respondents clear violation of petitioners constitutional guarantee of free expression, the right to damages from respondents is squarely assured by Article 32 (2) of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: x x x x (2) Freedom of speech; We noted in Lim v. Ponce de Leon that [p]ublic officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties [and] the object of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the good faith. 492[85] The application of Article 32 not only serves as a measure of pecuniary recovery to mitigate the injury to constitutional rights, it likewise serves notice to public officers and employees that any violation on their part of any persons guarantees under the Bill of Rights will meet with final reckoning. The present prayer for temperate damages is premised on the existence of pecuniary injury to petitioner due to the actions of respondents, the amount of which nevertheless being difficult to prove. 493[86] Temperate damages avail when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.494[87] The existence of pecuniary injury at bar cannot be denied. Petitioners had no way of knowing it when they filed their petition, but the actions of respondents led to the closure of their radio stations from June 2004 until this Court issued a writ of preliminary injunction in January 2006.495[88] The lost potential income during that one and a half year of closure can only be presumed as substantial enough. Still, despite that fact, possibly unanticipated when the original amount for claimed temperate damages was calculated, petitioners have maintained before this Court the same amount, P8 Million, for temperate damages. The said amount is reasonable under the circumstances.496[89]
492

160 Phil. 991, 1001 (1975). See also MHP Garments, Inc., v. Court of Appeals, G.R. No. 86720, 2 September 1994, 236 SCRA 227, 235.
493 [86] 494 [87] 495

[85]

Rollo (G.R. No. 179411), p. 183. See CIVIL CODE, Art. 2224.

According to an article posted on the official website of Bombo Radyo, DZNC accordingly resumed broadcast on 8 February 2006. See http://www.bomboradyo.com/archive/ new/stationprofile /bombocauayan/index.htm (last visited, 6 March 2009)
496

[88]

231 Exemplary damages can be awarded herein, since temperate damages are available. Public officers who violate the Constitution they are sworn to uphold embody a poison of wickedness that may not run through the body politic.497[90] Respondents, by purposely denying the commercial character of the property in order to deny petitioners the exercise of their constitutional rights and their business, manifested bad faith in a wanton, fraudulent, oppressive and malevolent manner.498[91] The amount of exemplary damages need not be proved where it is shown that plaintiff is entitled to temperate damages,499[92] and the sought for amount of P1 Million is more than appropriate. We likewise deem the prayer for P1 Million in attorneys fees as suitable under the circumstances. WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby reversed and set aside. Suspension for three (3) months of TV Host, as well as his own TV Program held not prior restraint.

BRO. ELISEO SORIANO VS. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, G.R. NO. 164785, APRIL 29, 2009 VELASCO, JR., J.: On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks: Lehitimong anak ng demonyo; sinungaling; Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito. Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC), against petitioner in connection with the above broadcast. Respondent Michael M.
[89] 497

See CIVIL CODE, Art. 2225.

[Exemplary damages] are an antidote so that the poison of wickedness may not run through the body politic. Octot v. Ybaez, etc., et al., 197 Phil. 76, 82 (1982).
498 [91] [The award of exemplary damages] would be allowed only if the guilty party acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. Octot v. Ybaez, supra note 87, at 85; citing Ong Yiu v. CA, 91 SCRA 223. 499 [92]

[90]

Patricio v. Hon. Leviste, G.R. No. L-51832, 26 April 1989.

232 Sandoval, who felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan.500[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.501[4] After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. 502[5] The same order also set the case for preliminary investigation. The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from hearing the case.503[6] Two days after, however, petitioner sought to withdraw 504[7] his motion for reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,505[8] docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued. On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows: WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, Ang Dating Daan. SO ORDERED.506[9] Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636. In G.R. No. 164785, petitioner raises the following issues: THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

500 501 502 503 504 505 506

[3] [4]

Id. at 924, Private Respondents Memorandum. Id. at 110. [5] Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of PD 1986 and the IRR. [6] Id. at 141-151. [7] Id. at 152-154. [8] Id. at 166-252. [9] Id. at 378.

233 (A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS; (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH; (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW; (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.507[10] In G.R. No. 165636, petitioner relies on the following grounds: SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT: I SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; II SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND III [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
507
[10]

Id. at 182.

234 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH508[11] G.R. No. 164785 We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision. It is petitioners threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension. Petitioners contention is untenable. Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute.509 [12] They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law.510[13] And in determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as existing, the authority given should be liberally construed.511[14] A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and supervision. Sec. 3 of PD 1986 pertinently provides the following: Section 3. Powers and Functions.The BOARD shall the following functions, powers and duties: xxxx c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous
508 509

have

Id. at 46. Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747. 510 [13] Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769. 511 [14] Agpalo, ADMINISTRATIVE LAW (2005); citing Matienzon v. Abellera, G.R. No. 77632, June 8, 1988, 162 SCRA 1.
[12]

[11]

235 tendency to encourage the commission of violence or of wrong or crime such as but not limited to: xxxx vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; xxxx (d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; xxxx k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. (Emphasis added.) The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television. Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or discipline illusory. Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an administrative investigation. 512[15] And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the complaint.513[16] To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as petitioner
512 513

Lastimoso v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497. Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689.
[16]

[15]

236 insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides: Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of issuance. But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs, pending a determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB. Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act.514[17] As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also conferred by necessary

514

[17] Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 295-296; citing Azarcon, supra note 12, at 761; Radio Communications of the Philippines, Inc. v. Santiago, Nos. L-29236 & 29247, August 21, 1974, 58 SCRA 493, 497.

237 implication.515[18] Clearly, the power to impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB. We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages. Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents complaint. No less than petitioner admitted that the order was issued after the adjournment of the hearing,516[19] proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency of the case. In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD 1986517[20] and of administrative complaints that had been filed against him for such violation.518[21] At any event, that preventive suspension can validly be meted out even without a hearing.519[22] Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers. Petitioners position does not persuade. The equal protection clause demands that all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed.520[23] It guards against undue favor and individual privilege as well as hostile discrimination.521[24] Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language similar to that which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal
515 516

63 Phil. 139, 177 (1936). Rollo (G.R. No. 164785), p. 12. 517 [20] Id. at 94. 518 [21] Id. at 95. 519 [22] Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992, 206 SCRA 256. 520 [23] 1 De Leon, PHILIPPINE CONSTITUTIONAL LAW 274 (2003). 521 [24] Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing Ichong v. Hernandez, 101 Phil. 1155 (1957) and other cases.
[19]

[18]

238 protection guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of oppressive inequality. Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like putang babae were said in exercise of his religious freedom. The argument has no merit. The Court is at a loss to understand how petitioners utterances in question can come within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows: No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. There is nothing in petitioners statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. G.R. No. 165636 Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievance. He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons articulated in this petition. It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause.522[25] Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends
US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v. Dans, Jr., No. L-59329, July 19, 1985, 137 SCRA 628.
522[25]

239 to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of protection.523[26] Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.524[27] The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern.525[28] In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was not intended to give immunity for every possible use of language. 526[29] From Lucas v. Royo comes this line: [T]he freedom to express ones sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard for the rights of others.527[30] Indeed, as noted in Chaplinsky v. State of New Hampshire,528[31] there are certain well-defined and narrowly limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems. In net effect, some forms of speech are not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause.529[32] A speech would fall under the unprotected type if the utterances involved are no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 530[33] Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest test, they being essentially modes of weighing competing values,531[34] or, with like effect, determining which of the clashing interests should be advanced. Petitioner asserts that his utterance in question is a protected form of speech.

523

[26] Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v. Pacifica Foundation, 438 U.S. 726; Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, 137 SCRA 717. 524 [27] J.G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 205 (1996). 525 [28] Lagunsad v. Soto vda. De Gonzales, No. L-32066, August 6, 1979, 92 SCRA 476. 526 [29] Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218. 527 [30] G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490. 528[31] 315 U.S. 568 (1942). 529[32] Agpalo, PHILIPPINE CONSTITUTIONAL LAW 358 (2006). 530[33] Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248. 531[34] Bernas, supra note 27, at 248.

240 The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security. The Court finds that petitioners statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations on the matter: There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is patently offensive. x x x What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion.532[35] Following the contextual lessons of the cited case of Miller v. California,533[36] a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards. A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated G or for general viewership, and in a time slot that would likely reach even the eyes and ears of children. While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae means a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used.
532 533
[35] [36]

G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361. 413 U.S. 15.

241 Petitioner further used the terms, ang gumagana lang doon yung ibaba, making reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech. Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech. No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications Commission (FCC) v. Pacifica Foundation,534[37] a 1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.535[38] and Chavez v. Gonzales,536[39] is a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction. In FCC, seven of what were considered filthy words537[40] earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the language used as patently offensive and indecent under a prohibiting law, though not necessarily obscene. FCC added, however, that its
534 535 536 537
[37] [38]

438 U.S. 726. Supra note 25. [39] G.R. No. 168338, February 15, 2008, 545 SCRA 441. [40] Shit, piss, fuck, tits, etc.

242 declaratory order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCCs content-based regulatory action under scrutiny. The Court in Chavez538[41] elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny. With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,539[42] easily reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein shown; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the audience; and third, petitioner uttered his speech on a G or for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in petitioners utterances on a general-patronage rated TV program, it may be readily proscribed as unprotected speech. A view has been advanced that unprotected speech refers only to pornography,540[43] false or misleading advertisement,541[44] advocacy of imminent lawless action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet another exception, another instance of unprotected speech, created by the necessity of

538 539

Supra note 39. Supra note 26. 540[43] Gonzales v. Kalaw Katigbak, supra. 541[44] Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.
[42]

[41]

243 protecting the welfare of our children. As unprotected speech, petitioners utterances can be subjected to restraint or regulation. Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent and such danger must be grave and imminent.542[45] Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil which the government has the power to prohibit.543[46] Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government. 544[47] It was originally designed to determine the latitude which should be given to speech that espouses anti-government action, or to have serious and substantial deleterious consequences on the security and public order of the community.545[48] The clear and present danger rule has been applied to this jurisdiction.546[49] As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster.547[50] As we observed in Eastern Broadcasting Corporation, the clear and present danger test does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.548[51] To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of proximity and degree the Court, however, in several casesAyer Productions v. Capulong549[52] and Gonzales v. COMELEC,550[53] applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that
542

Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226. 16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249 U.S. 47. 544[47] Bernas, supra note 27, at 219-220. 545[48] Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835. 546[49] ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712. 547[50] Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1. 548[51] Supra note 25, at 635. 549[52] No. L-82380, April 29, 1988, 160 SCRA 861. 550 [53] Supra note 48.
543[46]

[45]

244 where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation,551[54] then the balancing of interests test can be applied. The Court explained also in Gonzales v. COMELEC the balancing of interests test: When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. x x x We must, therefore, undertake the delicate and difficult task x x x to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x. In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the balancing-of-interests test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation. xxx Although the urgency of the public interest sought to be secured by Congressional power restricting the individuals freedom, and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the legislationthe reference here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.552[55]

551

[54]

552[55]

Supra at 898. Supra at 899-900.

245 This balancing of interest test, to borrow from Professor Kauper,553[56] rests on the theory that it is the courts function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests.554[57] To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow. In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth. After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period. No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution. The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other forms of discrimination.555[58] Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality
Kauper, CIVIL LIBERTIES AND THE CONSTITUTION 113 (1966); cited in Gonzales v. COMELEC, supra note 48; also cited in J.G. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003). 554 [57] Id. 555 [58] Bernas, supra note 27, at 81.
553[56]

246 which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their childrens minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of nationbuilding.556[59] In the same way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character.557[60] Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the States mandate to protect and care for them, as parens patriae,558[61] constitute a substantial and compelling government interest in regulating petitioners utterances in TV broadcast as provided in PD 1986. FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus: [B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written message, [Fuck the Draft], might have been incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York that the governments interest in the well-being of its youth and in supporting parents claim to authority in their own household justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young: x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be

556 557 558

[59] [60]

CONSTITUTION, Art. II, Sec. 13. Id., id., Sec. 12. [61] Id.

247 denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.559[62] The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC: It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x x x The [FFCs] decision rested entirely on a nuisance rationale under which context is all important. The concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.) There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably restrained or even removed from the parlor. Ergo, petitioners offensive and indecent language can be subjected to prior restraint. Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit indirectly. After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan. To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The
559
[62]

Supra note 26, at 729.

248 exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can classify movies and television programs and can cancel permits for exhibition of films or television broadcast. The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote: We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. x x x xxx While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz: The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character.560[63] Bernas adds: Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption. It decides what movies are immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition, or tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities, etc. Moreover, its decisions are executory unless stopped by a court.561[64]

560 561

[63] [64]

G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552. Supra note 56, at 235.

249 Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,562[65] it was held that the power of review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraint denial of permit or subsequent punishment, like suspension or cancellation of permit, among others. The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners exercise of his freedom of speech via television, but for the indecent contents of his utterances in a G rated TV program. More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry. Neither can petitioners virtual inability to speak in his program during the period of suspension be plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past speech made on primetime G rated TV program; it does not bar future speech of petitioner in
562
[65]

G.R. No. 155282, January 17, 2005, 448 SCRA 575.

250 other television programs; it is a permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB,563[66] sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986. Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a G rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioners television program is justified, and does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times. Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the law. The argument is without merit. In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise: It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which the legislative process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of the
563
[66]

Supra note 65.

251 law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability. To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations.564[67] Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law. Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose and objectives of [the law]. As earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority: x x x [W]hen a general grant of 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. x x x [W]hen the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its function.565[68]
564

No. L-32096, October 24, 1970, 35 SCRA 481, 496-497. Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936); Provident Tree Farms, Inc. v. Batario, Jr., G.R. No. 92285, March 28, 1994, 231 SCRA 463.
565
[68]

[67]

252 Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend? The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power [to] promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing: Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.) This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public. In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures, television programs, and publicity materials applying contemporary Filipino cultural values as standard, and, from there, determine whether these audio and video materials are objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute.566[69] The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non-delegation of legislative powers. 567 [70] Administrative regulations or subordinate legislation calculated to promote the public interest are necessary because of the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law.568[71] Allowing the
566 567 568
[69] [70]

People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458. Id. [71] Id.

253 MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and television industry. But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the law and the facts obtaining call for. In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on television without adverse consequences, under the guise of free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech. WHEREFORE, the decision of the MTRCB in Adm. Case No. 0104 dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows: WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition. DISSENTING OPINION, Justice Antonio Carpio.

254 I dissent because the three-month suspension of petitioners TV program Ang Dating Daan constitutes an unconstitutional prior restraint on freedom of expression. The suspension prevents petitioner from even reciting the Lords Prayer, or even saying hello to viewers, in his TV program. The suspension bars the public airing of petitioners TV program regardless of whatever subject matter petitioner, or anyone else, wishes to discuss in petitioners TV program. This is like suspending the publication of the Philippine Daily Inquirer for three months if its editorial describes a private person as masahol pa sa putang babae. This is also similar to suspending for three months the column of a newspaper columnist for using the expletive putang ina mo in his column. Such suspension is the censorship that the Constitution outlaws when it states that [n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x.569[1] The remedy of any aggrieved person is to file a libel or tort case after the utterance or publication of such cusswords. Our libels laws punish with fine, imprisonment or damages libelous language already uttered or published.570[2] Our tort laws also allow recovery of damages for tortious speech already uttered or published.571[3] However, both our libel and tort laws never impose a gag order on future expression because that will constitute prior restraint or censorship. Thus, our libel and tort laws do not allow the filing of a suit to enjoin or punish an expression that has yet to be uttered or written. Indeed, there can never be a prior restraint on future expression, whether for fear of possible libelous utterance or publication, or as a punishment for past libelous utterance or publication. Otherwise, many of the radio and TV political programs will have to be banned for the frequent use of cusswords and other libelous language. Even politicians will have to be barred from addressing political rallies, or the rallies themselves will have to be banned, because politicians often use cusswords and other profanities during political rallies. In the present case, the three-month preventive suspension of petitioners TV program bars petitioner from talking about the weather, or from talking about the birds and the bees, or even from talking about nothingness, in his TV program. The public airing of the entire TV program, regardless of its content, is totally suppressed for three months. The Government has no power under the Constitution to so brazenly suppress freedom of expression. This Court should never give its imprimatur to such a blatant violation of a fundamental constitutional right, which has been

569[1]

Section 4, Article III, Constitution.

570[2]

Article 353-359, Revised Penal Code; Article 33, Civil Code.

571[3]

Article 26, Civil Code.

255 described as the one basic right that makes all other civil, human and political rights possible. Prior Restraint on Expression The well-settled rule is there can be no prior restraint on expression. This rule emanates from the constitutional command that [n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x. The history of freedom of expression has been a constant struggle against the censors prior restraint on expression. The leading American case of Near v. Minnesota572[4] teaches us that the primordial purpose of the Free Expression Clause is to prevent prior restraint on expression. This well-settled rule, however, is subject to exceptions narrowly carved out by courts over time because of necessity. In this jurisdiction, we recognize only four exceptions, namely: pornography,573[5] false or misleading advertisement,574[6] advocacy of imminent lawless action,575 [7] and danger to national security.576[8] Only in these instances may expression be subject to prior restraint. All other expression is not subject to prior restraint. Although pornography, false or misleading advertisement, advocacy of imminent lawless action, and expression endangering national security may be subject to prior restraint, such prior restraint must hurdle a high barrier. First, such prior restraint is strongly presumed as unconstitutional. Second, the government bears a heavy burden of justifying such prior restraint.577[9] The test to determine the constitutionality of prior restraint on pornography, advocacy of imminent lawless action, and expression endangering national security is the clear and present danger test. The expression subject to prior restraint must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent, and such danger must be grave and imminent.578[10]

572[4]

283 U.S. 697 (1931).

573[5]

Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985).

574[6]

Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, 2007, 535 SCRA 265.
575[7]

9 October

Eastern Broadcasting Corporation v. Dans, No. 222 Phil. 151 (1985).

576[8]

Id.
577[9]

Iglesia ni Cristo (INC) v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529; York Times v. United States, 403 U.S. 713 (1971).
578[10]

New

Bayan v. Ermita, G.R. Nos. 169838, 169848 and 169881, 25 April 2006, 488 SCRA 226.

256 The power of Congress to impose prior restraint on false or misleading advertisements emanates from the constitutional provision that the advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.579[11] Prior restraint on expression may be either content-based or contentneutral. Content-based prior restraint is aimed at suppressing the message or idea contained in the expression. Courts subject content-based restraint to strict scrutiny. Content-neutral restraint on expression is restraint that regulates the time, place or manner of expression in public places without any restraint on the content of the expression. Courts subject content-neutral restraint to intermediate scrutiny. Subsequent Punishment of Expression The rule is also well-settled that expression cannot be subject to subsequent punishment. This rule also emanates from the constitutional command that [n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x. However, courts again have carved out narrow exceptions to this rule out of necessity. The exceptions start with the four types of expression that may be subject to prior restraint. If a certain expression is subject to prior restraint, its utterance or publication in violation of the lawful restraint naturally subjects the person responsible to subsequent punishment. Thus, acts of pornography,580[12] false or misleading advertisement,581[13] advocacy of imminent lawless action,582[14] and endangering national security,583[15] are all punishable under the law. Two other exceptions are defamation,584[16] which includes libel and slander, and tortious speech.585[17] Defamatory and tortious speech, per se, are not subject to prior restraint because by definition they do not constitute a clear and present danger to the State that is grave and imminent. Once defamatory or tortuous speech rises to the level of advocacy of imminent lawless action, then it may be subject to prior restraint because it is
579[11]

Section 11(2), Article XVI, Constitution.

580[12]

Article 201, Revised Penal Code.

581[13]

Section 6(a), Milk Code.

582[14]

Article 142, Revised Penal Code.

583[15]

Article 138, Revised Penal Code.

584[16]

See note 2.
585[17]

See note 3.

257 seditious586[18] but not because it is defamatory or tortious. Defamation and tortious conduct, however, may be subject to subsequent punishment, civilly or criminally. Fighting words are not subject to subsequent punishment unless they are defamatory or tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent response from an audience. Profane or vulgar words like Fuck the draft, when not directed at any particular person, ethnic or religious group, are not subject to subsequent punishment.587[19] As aptly stated, one mans vulgarity may be another mans lyric.588[20] If profane or vulgar language like Fuck the draft is not subject to subsequent punishment, then with more reason it cannot be subject to prior restraint. Without a law punishing the actual utterance or publication of an expression, an expression cannot be subject to prior restraint because such expression is not unlawful or illegal. Prior restraint is more deleterious to freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. Thus, the three-month suspension of petitioners TV program, being a prior restraint on expression, has far graver ramifications than any possible subsequent punishment of petitioner. Three-Month Suspension is a Prohibited Prior Restraint The three-month suspension of petitioners TV program is indisputably a prior restraint on expression. During the three-month suspension, petitioner cannot utter a single word in his TV program because the program is totally suppressed. A prior restraint may be justified only if the expression falls under any of the four types of expression that may be subject to prior restraint, namely, pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. Obviously, what petitioner uttered does not fall under any of the four types of expression that may be subject to prior restraint. What respondents assail is the following ranting of petitioner: Lehitimong anak ng demonyo; sinungaling;

586[18]

Articles 138 and 142, Revised Penal Code.

587[19]

Cohen v. California, 403 U.S. 15 (1971).

588[20]

Id.

258 Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito No matter how offensive, profane or vulgar petitioners words may be, they do not constitute pornography, false or misleading advertisement, advocacy of imminent lawless action, or danger to national security. Thus, petitioners offensive, profane or vulgar language cannot be subject to prior restraint but may be subject to subsequent punishment if defamatory or tortious. Any prior restraint is strongly presumed to be unconstitutional and the government bears a heavy burden of justifying such prior restraint. 589[21] Such prior restraint must pass the clear and present danger test. The majority opinion, which imposes a prior restraint on expression, is totally bereft of any discussion that petitioners ranting poses a clear and present danger to the State that is grave and imminent. The respondents have not presented any credible justification to overcome the strong presumption of unconstitutionality accorded to the three-month suspension order. The three-month suspension cannot be passed off merely as a preventive suspension that does not partake of a penalty. The actual and real effect of the three-month suspension is a prior restraint on expression in violation of a fundamental constitutional right. Even Congress cannot validly pass a law imposing a three-month preventive suspension on freedom of expression for offensive or vulgar language uttered in the past. Congress may punish such offensive or vulgar language, after their utterance, with damages, fine or imprisonment but Congress has no power to suspend or suppress the peoples right to speak freely because of such past utterances. In short, Congress may pass a law punishing defamation or tortious speech but the punishment cannot be the suspension or suppression of the constitutional right to freedom of expression. Otherwise, such law would be abridging the freedom of speech, of expression, or of the press. If Congress cannot pass such a law, neither can respondent MTRCB promulgate a rule or a decision suspending for three months petitioners constitutional right to freedom of expression. And of course, neither can this Court give its stamp of imprimatur to such an unconstitutional MTRCB rule or decision.

REPUBLIC OF THE PHILIPPINES VS. HOLY TRINITY REALTY DEVELOPMENT CORPORATION, G.R. No. 172410, April 14, 2008 THE FACTS:
589[21]

See note 9.

259

On 29 December 2000, petitioner Republic of the Philippines, represented by the Toll Regulatory Board (TRB), filed with the RTC a Consolidated Complaint for Expropriation against landowners whose properties would be affected by the construction, rehabilitation and expansion of the North Luzon Expressway. The suit was docketed as Civil Case No. 869-M-2000 and raffled to Branch 85, Malolos, Bulacan. Respondent Holy Trinity Realty and Development Corporation (HTRDC) was one of the affected landowners. On 18 March 2002, TRB filed an Urgent Ex-Parte Motion for the issuance of a Writ of Possession, manifesting that it deposited a sufficient amount to cover the payment of 100% of the zonal value of the affected properties, in the total amount of P28,406,700.00, with the Land Bank of the Philippines, South Harbor Branch (LBP-South Harbor), an authorized government depository. TRB maintained that since it had already complied with the provisions of Section 4 of Republic Act No. 8974590[5] in relation to Section 2 of Rule 67 of the Rules of Court, the issuance of the writ of possession becomes ministerial on the part of the RTC. The RTC issued, on 19 March 2002, an Order for the Issuance of a Writ of Possession. On 3 March 2003, HTRDC filed with the RTC a Motion to Withdraw Deposit, praying that the respondent or its duly authorized representative be allowed to withdraw the amount of P22,968,000.00, out of TRBs advance deposit of P28,406,700.00 with LBP-South Harbor, including the interest which accrued thereon. Thereafter, the RTC allowed the release of the principal amount together with the interest to the respondent but on Motion for Reconsideration of the TRB, it disallowed the withdrawal of the interest reasoning out that the said issue will be included in the second stage of expropriation, that is, the determination of just compensation. The private respondent elevated the issue to the Court of Appeals which ruled that the respondent is entitled to the interest by way of accession. Hence, this petition of the government before the Supreme Court. I S S U E: Who has the right over the interest of the amount deposited representing the zonal value of the property sought to be expropriated? The expropriator or the landowner? HELD: The petition is without merit.
590

260 The TRB claims that there are two stages591[11] in expropriation proceedings, the determination of the authority to exercise eminent domain and the determination of just compensation. The TRB argues that it is only during the second stage when the court will appoint commissioners and determine claims for entitlement to interest, citing Land Bank of the Philippines v. Wycoco592[12] and National Power Corporation v. Angas.593[13] The TRB further points out that the expropriation account with LBPSouth Harbor is not in the name of HTRDC, but of DPWH. Thus, the said expropriation account includes the compensation for the other landowners named defendants in Civil Case No. 869-M-2000, and does not exclusively belong to respondent. The said argument is without merit because it failed to distinguish between the expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of Court. Republic Act No. 8974 and Rule 67 of the Rules of Court speak of different procedures, with the former specifically governing expropriation proceedings for national government infrastructure projects. Thus, in Republic v. Gingoyon,594[14] we held: There are at least two crucial differences between the respective procedures under Rep. Act No. 8974 and Rule 67. Under the statute, the Government is required to make immediate payment to the property owner upon the filing of the complaint to be entitled to a writ of possession, whereas in Rule 67, the Government is required only to make an initial deposit with an authorized government depositary. Moreover, Rule 67 prescribes that the initial deposit be equivalent to the assessed value of the property for purposes of taxation, unlike Rep. Act No. 8974 which provides, as the relevant standard for initial compensation, the market value of the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of Internal Revenue (BIR), whichever is higher, and the value of the improvements and/or structures using the replacement cost method. xxxx Rule 67 outlines the procedure under which eminent domain may be exercised by the Government. Yet by no means does it serve at present as the solitary guideline through which the State may expropriate private property. For example, Section 19 of the Local Government Code governs as to the exercise by local government units of the power of eminent domain through an enabling ordinance. And then there is Rep. Act No. 8974, which covers expropriation proceedings intended for national government infrastructure projects. Rep. Act No. 8974, which provides for a procedure eminently more favorable to the property owner than Rule 67, inescapably applies in instances
591 592 593 594

261 when the national government expropriates property for national government infrastructure projects. Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. There is no question that the proceedings in this case deal with the expropriation of properties intended for a national government infrastructure project. Therefore, the RTC correctly applied the procedure laid out in Republic Act No. 8974, by requiring the deposit of the amount equivalent to 100% of the zonal value of the properties sought to be expropriated before the issuance of a writ of possession in favor of the Republic. The controversy, though, arises not from the amount of the deposit, but as to the ownership of the interest that had since accrued on the deposited amount. Whether the Court of Appeals was correct in holding that the interest earned by the deposited amount in the expropriation account would accrue to HRTDC by virtue of accession, hinges on the determination of who actually owns the deposited amount, since, under Article 440 of the Civil Code, the right of accession is conferred by ownership of the principal property: Art. 440. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. The principal property in the case at bar is part of the deposited amount in the expropriation account of DPWH which pertains particularly to HTRDC. Such amount, determined to be P22,968,000.00 of the P28,406,700.00 total deposit, was already ordered by the RTC to be released to HTRDC or its authorized representative. The Court of Appeals further recognized that the deposit of the amount was already deemed a constructive delivery thereof to HTRDC: When the [herein petitioner] TRB deposited the money as advance payment for the expropriated property with an authorized government depositary bank for purposes of obtaining a writ of possession, it is deemed to be a constructive delivery of the amount corresponding to the 100% zonal valuation of the expropriated property. Since [HTRDC] is entitled thereto and indisputably the owner of the principal amount deposited by [herein petitioner] TRB, conversely, the interest yield, as accession, in a bank deposit should likewise pertain to the owner of the money deposited.595[15] Since the Court of Appeals found that the HTRDC is the owner of the deposited amount, then the latter should also be entitled to the interest which accrued thereon. The deposit was made in order to comply with Section 4 of Republic Act No. 8974, which requires nothing less than the immediate payment of
595

262 100% of the value of the property, based on the current zonal valuation of the BIR, to the property owner. Thus, going back to our ruling in Republic v. Gingoyon596[16]: It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme of immediate payment in cases involving national government infrastructure projects. The critical factor in the different modes of effecting delivery which gives legal effect to the act is the actual intention to deliver on the part of the party making such delivery.597[17] The intention of the TRB in depositing such amount through DPWH was clearly to comply with the requirement of immediate payment in Republic Act No. 8974, so that it could already secure a writ of possession over the properties subject of the expropriation and commence implementation of the project. In fact, TRB did not object to HTRDCs Motion to Withdraw Deposit with the RTC, for as long as HTRDC shows (1) that the property is free from any lien or encumbrance and (2) that respondent is the absolute owner thereof.598[18] A close scrutiny of TRBs arguments would further reveal that it does not directly challenge the Court of Appeals determinative pronouncement that the interest earned by the amount deposited in the expropriation account accrues to HTRDC by virtue of accession. TRB only asserts that HTRDC is entitled only to an amount equivalent to the zonal value of the expropriated property, nothing more and nothing less. We agree in TRBs statement since it is exactly how the amount of the immediate payment shall be determined in accordance with Section 4 of Republic Act No. 8974, i.e., an amount equivalent to 100% of the zonal value of the expropriated properties. However, TRB already complied therewith by depositing the required amount in the expropriation account of DPWH with LBP-South Harbor. By depositing the said amount, TRB is already considered to have paid the same to HTRDC, and HTRDC became the owner thereof. The amount earned interest after the deposit; hence, the interest should pertain to the owner of the principal who is already determined as HTRDC. The interest is paid by LBP-South Harbor on the deposit, and the TRB cannot claim that it paid an amount more than what it is required to do so by law. Since the respondent is the owner of P22,968,000.00, it is entitled by right of accession to the interest that had accrued to the said amount only. We are not persuaded by TRBs citation of National Power Corporation v. Angas and Land Bank of the Philippines v. Wycoco, in support of its argument that the issue on interest is merely part and parcel of the determination of just compensation which should be determined in the second stage of the proceedings only. We find that neither case is applicable herein.
596 597 598

263 The issue in Angas is whether or not, in the computation of the legal rate of interest on just compensation for expropriated lands, the applicable law is Article 2209 of the Civil Code which prescribes a 6% legal interest rate, or Central Bank Circular No. 416 which fixed the legal rate at 12% per annum. We ruled in Angas that since the kind of interest involved therein is interest by way of damages for delay in the payment thereof, and not as earnings from loans or forbearances of money, Article 2209 of the Civil Code prescribing the 6% interest shall apply. In Wycoco, on the other hand, we clarified that interests in the form of damages cannot be applied where there is prompt and valid payment of just compensation. The case at bar, however, does not involve interest as damages for delay in payment of just compensation. It concerns interest earned by the amount deposited in the expropriation account. Under Section 4 of Republic Act No. 8974, the implementing agency of the government pays just compensation twice: (1) immediately upon the filing of the complaint, where the amount to be paid is 100% of the value of the property based on the current relevant zonal valuation of the BIR (initial payment); and (2) when the decision of the court in the determination of just compensation becomes final and executory, where the implementing agency shall pay the owner the difference between the amount already paid and the just compensation as determined by the court (final payment) As a final note, TRB does not object to HTRDCs withdrawal of the amount of P22,968,000.00 from the expropriation account, provided that it is able to show (1) that the property is free from any lien or encumbrance and (2) that it is the absolute owner thereof. The said conditions do not put in abeyance the constructive delivery of the said amount to HTRDC pending the latters compliance therewith. Article 1187 of the Civil Code provides that the effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Hence, when HTRDC complied with the given conditions, as determined by the RTC in its Orderdated 21 April 2003, the effects of the constructive delivery retroacted to the actual date of the deposit of the amount in the expropriation account of DPWH. RIGHT TO A COMPETENT AND INDEPENDENT COUNSEL OF HIS OWN CHOICE. This case is different form the previous doctrines. PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL., G.R. No. 178300, March 17, 2009 CHICO-NAZARIO, J.:

264 On 11 August 1999, an Information599[4] was filed before the RTC charging appellants with the special complex crime of kidnapping for ransom with homicide. The accusatory portion of the information reads: The undersigned State Prosecutor of the Department of Justice hereby accuses Domingo Reyes y Paje, Alvin Arnaldo y Avena and Joselito Flores y Victorio of the crime of kidnapping for ransom with homicide defined and penalized under Article 267 of the Revised Penal Code, as amended, committed as follows: That on or about 11:00 p.m. on July 16, 1999, at Sitio Lambakin, barangay Sto. Cristo, San Jose del Monte, Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another and grouping themselves together with Juanito Pataray y Cayaban, Federico Pataray y Cabayan and Rommel Libarnes y Acejo, who are still at large, did then and there willfully, unlawfully and feloniously, by means of force and intimidation and with use of firearms, carry away and deprive Robert Yao, Yao San, Chua Ong Ping Sim, Raymond Yao, Ronald Matthew Yao, Lennie Yao, Charlene Yao, Jona Abagatnan ang Josephine Ortea against their will and consent on board their Mazda MVP van for the purpose of extorting money in the amount of Five Million Pesos (P5,000,000.00), that during the detention of Chua Ong Ping Sim and Raymong Yao, said accused with intent to kill, willfully and unlawfully strangled Chua Ong Ping Sim and Raymond Yao to death to the damage and prejudice of their heirs in such amount as may be awarded to them by this Honorable Court. The prosecution presented as witnesses Jona Abagatnan (Abagatnan), Robert Yao (Robert), Yao San, Police Officer 3 (PO3) Alex Alberto, PO3 Roberto Jabien, Atty. Florimond Rous (Atty. Rous) and Atty. Carlo Uminga (Atty. Uminga). Their testimonies, taken together, attest to the following: The Yao family is composed of Yao San (father), Chua Ong Ping Sim (mother), Robert and Raymond (children), Lenny (daughter-in-law, wife of Robert), Matthew and Charlene (grandchildren), and Jona Abagatnan and Josephine Ortea (housemaids). The Yao family owns and operates a poultry farm in Barangay Santo Cristo, San Jose del Monte, Bulacan. On 16 July 1999, at about 11:00 p.m., the Yao family, on board a Mazda MVP van, arrived at the their poultry farm in Barangay Sto. Cristo, San Jose del Monte, Bulacan. Yao San alighted from the van to open the gate of the farm. At this juncture, appellant Reyes and a certain Juanito Pataray (Pataray) approached, poked their guns at Yao San, and dragged him inside the van. Appellant Reyes and Pataray also boarded the van. Thereupon, appellants Arnaldo and Flores, with two male companions, all armed with guns, arrived and immediately boarded the van. Appellant Flores took the drivers seat and drove the van. Appellants Reyes and Arnaldo and their

599[4]

Records, pp. 42-43.

265 cohorts then blindfolded each member of the Yao family inside the van with packaging tape.600[6] After about 30 minutes of traveling on the road, the van stopped. Per order of appellants and their cohorts, Chua Ong Ping Sim, Robert, Raymond and Jona Abagatnan (Abagatnan) stepped out of the van with appellants Reyes and Arnaldo, Pataray and one of their male companions.601[7] Appellant Flores, with the other male companion, drove the van with the remaining members of the Yao family inside the vehicle.602[8] Later, the van stopped again. Appellant Flores and his male companion told Yao San to produce the amount of five million pesos (P5,000,000.00) as ransom in exchange for the release of Chua Ong Ping Sim, Robert, Raymond and Abagatnan. Thereafter, appellant Flores and his male companion left the van and fled; while Yao San, Lenny, Matthew, Charlene and Josephine remained inside the van. Upon sensing that the kidnappers had already left, Yao San drove the van towards the poultry farm and sought the help of relatives.603[9] Meanwhile, Chua Ong Ping Sim, Robert, Raymond and Abagatnan were taken on foot by appellants Reyes and Arnaldo, Pataray and one male companion to a safe-house situated in the mountainous part of San Jose Del Monte, Bulacan where they spent the whole night.604[10] On the morning of the following day, at around 4:00 a.m., appellants and their cohorts tried to contact Yao San regarding the ransom demanded, but the latter could not be reached. Thus, appellants instructed Abagatnan to look for Yao San in the poultry farm. Appellants Reyes and Arnaldo and one male companion escorted Abagatnan in proceeding to the poultry farm. Upon arriving therein, Abagatnan searched for Yao San, but the latter could not be found. Appellants Reyes and Arnaldo told Abagatnan to remind Yao San about the ransom demanded. Thereafter, appellants Reyes and Arnaldo and their male companion left Abagatnan in the poultry farm and went back to the safe-house.605[11] In the safe-house, appellants told Robert that they would release him so he could help Abagatnan in locating Yao San. Robert and appellants left the safe-house, and after 30 minutes of trekking, appellants abandoned Robert. Robert then ran towards the poultry farm. Upon arriving at the poultry farm, Robert found Yao San and informed him about the ransom demanded by the appellants. Robert also told Yao San that Chua Ong Ping Sim and Raymond were still held by appellants and their cohorts.606[12] On 18 July 1999, appellants called Yao San through a cellular phone and demanded the ransom of P5 million for Chua Ong Ping Sim and
600[6] 601[7] 602[8] 603[9] 604[10] 605[11] 606[12]

TSN, 26 October 1999, pp. 3-14; TSN, 11 August 2000, pp. 3-7; TSN, 21 September 2000, pp. 2- 8. TSN, 26 October 1999, pp. 16-17; TSN, 11 August 2000, p. 7. Records, p. 34. Id. TSN, 26 October 1999, pp. 16-23; TSN, 7 December 1999, pp. 2-5; TSN, 11 August 2000, pp. 8- 9. TSN, 7 December 1999, pp. 4-7. Id. at 7-8; TSN, 11 August 2000, pp. 10-12.

266 Raymond. Yao San acceded to appellants demand. Appellants allowed Yao San to talk with Chua Ong Ping Sim.607[13] On the morning of 19 July 1999, appellants again called Yao San via a cellular phone and threatened to kill Chua Ong Ping Sim and Raymond because of newspaper and radio reports regarding the incident. Yao San clarified to appellants that he did not report the incident to the police and also pleaded with them to spare the life of Chua Ong Ping Sim and Raymond. Appellants then instructed Yao San to appear and bring with him the ransom of P5 million at 3:00 p.m. in the Usan dumpsite, Litex Road, Fairview, Quezon City. Yao San arrived at the designated place of the pay-off at 4:00 p.m., but none of the appellants or their cohorts showed up. Yao San waited for appellants call, but none came. Thus, Yao San left.608[14] On 23 July 1999, the corpses of Chua Ong Ping Sim and Raymond were found at the La Mesa Dam, Novaliches, Quezon City.609[15] Both died of asphyxia by strangulation.610[16] On 26 July 1999, appellant Arnaldo surrendered to the Presidential Anti-Organized Crime Task Force (PAOCTF) at Camp Crame, Quezon City. Thereupon, appellant Arnaldo, with the assistance of Atty. Uminga, executed a written extra-judicial confession narrating his participation in the incident. Appellant Arnaldo identified appellants Reyes and Flores, Pataray and a certain Tata and Akey as his co-participants in the incident. Appellant Arnaldo also described the physical features of his cohorts and revealed their whereabouts.611[17] Subsequently, appellant Reyes was arrested in Sto. Cristo, San Jose del Monte, Bulacan. Thereafter, appellants Arnaldo and Reyes were identified in a police line-up by Yao San, Robert and Abagatnan as their kidnappers.612[18] On 10 August 1999, agents of the PAOCTF arrested appellant Flores in Balayan, Batangas. Afterwards, appellant Flores, with the assistance of Atty. Rous, executed a written extra-judicial confession detailing his participation in the incident. Appellant Flores identified appellants Reyes and Arnaldo, Pataray and a certain Tata and Akey as his co-participants in the incident. Appellant Flores was subsequently identified in a police line-up by Yao San, Robert and Abagatnan as one of their kidnappers.613[19] For its part, the defense presented the testimonies of appellants, Marina Reyes, Irene Flores Celestino, Wilfredo Celestino, Jr., Rachel C. Ramos, and Isidro Arnaldo. Appellants denied any liability and interposed alibis and the defense of frame-up. Their testimonies, as corroborated by their witnesses, are as follows:
607[13] 608[14] 609[15] 610[16] 611[17] 612[18] 613[19]

Records, p. 35. Id; TSN, 11 August 2000, pp. 12-14. TSN, 7 December 1999, pp. 8-9; TSN, 11 August 2000, pp. 14-15; Records, p. 35. Records, pp. 15-17. Id. at 5, 8, 12, & 24-28. Id. at 13-14 & 33, 35, & 38. Id. at 46-48, 63-64 & 302-306.

267

Appellant Arnaldo testified that he was an asset of the PAOCTF. He narrated that on 25 July 1999, while he was at the tricycle terminal of Brgy. Sto. Cristo, San Jose del Monte, Bulacan, a police officer named Liwanag of the PAOCTF approached and invited him to go to Camp Crame to shed light on a kidnapping case allegedly committed by a certain Brgy. Captain Ramos and by members of the Aguirre and Bautista families. He accepted the invitation. Subsequently, he proceeded to Camp Crame and met therein Colonel Cesar Mancao III (Colonel Mancao) of the PAOCTF. Colonel Mancao told him that the PAOCTF would arrest Brgy. Capt. Ramos and certain persons named Gerry Bautista and Dadie Bautista. Colonel Mancao instructed him to identify said persons as responsible for the kidnapping of the Yao family. He refused to do so because he feared Brgy. Capt. Ramos. The day after, Colonel Mancao called appellant Arnaldo to his office. Upon arriving thereat, the latter saw Yao San. Yao San promised him that if their kidnappers would be apprehended through his cooperation, he would give him P500,000.00. He accepted Yao Sans offer under the condition that he would identify a different set of suspects. Later, Colonel Mancao gave him P30,000.00.614[31] Subsequently, he pointed to appellants Reyes and Flores as his cohorts in kidnapping the Yao family. He implicated appellants Reyes and Flores to get even with them, since the two had previously mauled him after he sold their fighting cocks and failed to give them the proceeds of the sale.615
[32]

He denied having met with Atty. Uminga. He was not assisted by the latter when he was forced by the PAOCTF to make a written extra-judicial confession on the kidnapping of the Yao family. Further, he claimed that while he was under the custody of PAOCTF, a certain Major Paulino utilized him as a drug pusher. Upon failing to remit the proceeds of the drug sale, he was beaten up by PAOCTF agents and thereafter included as accused with appellants Reyes and Flores for the kidnapping of the Yao family.616[33] On the other hand, appellant Reyes testified that he slept in his house with his family from 6:00 p.m. of 16 July 1999 until the morning of the next day; that on the early morning of 26 July 1999, five policemen barged into his house and arrested him; that the policemen told him that he was a suspect in the kidnapping of the Yao family; that he was mauled by the policemen outside his house; that the policemen forcibly brought him to Camp Crame, where he was subsequently tortured; that he knew the Yao family because he worked as a carpenter in the familys poultry farm at Brgy. Sto. Cristo, San Jose del Monte, Bulacan; that he had no involvement in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the family because appellant Arnaldo held a grudge against him.617[34]

614[31] 615[32] 616[33] 617[34]

TSN, 7 June 2001, pp. 3-21. TSN, 10 July 2001, pp. 3-6. Id. at 10-16; TSN, 21 August 2001, pp. 3-14. TSN, 6 March 2001, pp. 3-10.

268 For his part, appellant Flores testified that he stayed in his sisters house at Antipolo City from 12 July 1999 up to 30 July 1999; that he went to her house on 12 July 1999 because it was the birthday of her child; that he worked as a construction worker during his stay in his sisters house; that he was arrested in Batangas and thereafter brought to Camp Crame, where he was beaten up by policemen for refusing to admit involvement in the kidnapping of the Yao family; that after three days of beating, he was forced to sign a document which he later found out to be a written extra-judicial confession; that he never met nor did he know Atty. Rous; that he knew the Yao family because he lived near the familys poultry farm, and he used to work therein as a welder; that he had no participation in the kidnapping of the family; and that appellant Arnaldo implicated him in the kidnapping of the family because he and appellant Reyes had mauled appellant Arnaldo several years ago.618[35] The defense proffered documentary and object evidence to buttress their foregoing claims, to wit: (1) prayer booklet of appellant Arnaldo (Exhibit 1 for appellant Arnaldo);619[36] (2) calling card of Colonel Mancao (Exhibit 2 for appellant Arnaldo);620[37] and (3) pictures allegedly showing appellant Flores working as a carpenter in Antipolo City (Exhibits 1 & 2 for appellant Flores).621[38] After trial, the RTC rendered a Decision dated 26 February 2002 convicting appellants of the special complex crime of kidnapping for ransom with homicide and sentencing each of them to suffer the supreme penalty of death. Appellants were also ordered to pay jointly and severally the Yao family P150,000.00 as civil indemnity, P500,000.00 as moral damages and the costs of the proceedings. The dispositive portion of the RTC Decision reads: WHEREFORE, finding herein three (3) accused DOMINGO REYES y PAJE, ALVIN ARNALDO y AVENA, and JOSELITO FLORES y VICTORIO guilty as principals beyond reasonable doubt of the crime of KIDNAPPING FOR RANSOM WITH (DOUBLE) HOMICIDE as charged, they are hereby sentenced each to suffer the supreme penalty of DEATH as mandated by law, to jointly and severally indemnify the heirs of deceased Chua Ong Ping Sim and Raymond Yao in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), and all the private offended parties or victims, including the heirs of the deceased, in the amount of Five Hundred Thousand Pesos (P500,000.00) as moral damages, subject to the corresponding filing fee as a first lien, and to pay the costs of the proceedings.622[39] By reason of the death penalty imposed on each of the appellants, the instant case was elevated to us for automatic review. However, pursuant to

618[35] 619[36] 620[37] 621[38] 622[39]

TSN, 24 May 2001, pp. 2-9. Records, Volume VI, Index of Exhibits. Id. Records, p. 357. CA rollo, p. 61.

269 our ruling in People v. Mateo,623[40] we remanded the instant case to the Court of Appeals for proper disposition. On 14 August 2006, the Court of Appeals promulgated its Decision affirming with modifications the RTC Decision. The appellate court reduced the penalty imposed by the RTC on each of the appellants from death penalty to reclusion perpetua without the possibility of parole. It also decreased the amount of civil indemnity from P150,000.00 to P100,000.00. Further, it directed appellants to pay jointly and severally the Yao family P100,000.00 as exemplary damages. The fallo of the Court of Appeals decision states: WHEREFORE, premises considered, the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 12, dated February 26, 2002, in Criminal Case No. 1611-M-99 convicting accused-appellants of the crime of Kidnapping For Ransom with (Double) Homicide, is hereby AFFIRMED with MODIFICATIONS in that: 1) accused-appellants are instead sentenced to suffer the penalty of reclusion perpetua; 2) the award of civil indemnity ex delicto is hereby reduced to P100,000; and 3) accused-appellants are further ordered to pay private complainants the amount of P100,000.00 as exemplary damages.624[41] Appellants filed a motion for reconsideration of the Court of Appeals Decision but this was denied. Hence, appellants filed their Notice of Appeal on 25 August 2006. One of the main issues raised is: THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE EXTRA-JUDICIAL CONFESSIONS OF APPELLANT ARNALDO AND APPELLANT FLORES; Appellant Reyes claims that his alleged participation in the kidnapping of the Yao family was based solely on the written extra-judicial confessions of appellants Arnaldo and Flores. He maintains, however, that said extra-judicial confessions are inadmissible in evidence, because they were obtained in violation of his co-appellants constitutional right to have an independent counsel of their own choice during custodial investigation. Appellant Reyes alleges that the agents of the PAOCTF did not ask his coappellants during the custodial investigation whether they had a lawyer of their own choice, and whether they could afford to hire a lawyer; that the agents of the PAOCTF suggested the availability of Atty. Uminga and Atty. Rous to his co-appellants; and that Atty. Uminga and Atty. Rous were associates of the PAOCTF. Appellant Reyes also asseverates that the extra623[40] 624[41]

G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640. Rollo, p. 34.

270 judicial confessions of appellants Arnaldo and Flores cannot be utilized against him. Appellant Flores argues that his written extra-judicial confession is inadmissible in evidence, because it was obtained in violation of his constitutional right to have an independent counsel of his own choice during custodial investigation. He insists that his written extra-judicial confession was elicited through force, torture and without the assistance of a lawyer. He avers that he was not assisted by any lawyer from the time he was arrested until he was coerced to sign the purported confession; that he was forced to sign it because he could not anymore endure the beatings he suffered at the hands of the PAOCTF agents; and that he never met or knew Atty. Rous who, according to the PAOCTF, had assisted him during the custodial investigation. Appellant Arnaldo contends that his written extra-judicial confession should be excluded as evidence, as it was procured in violation of his constitutional right to have an independent counsel of his own choice during custodial investigation. He claims that he was not given freedom to choose his counsel; that the agents of the PAOCTF did not ask him during the custodial investigation whether he had a lawyer of his own choice, and whether he could afford to hire a lawyer; and that the agents of the PAOCTF suggested the availability of Atty. Uminga to him. Thus, we have held that an extra-judicial confession is admissible in evidence if the following requisites have been satisfied: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.625[67] The right of an accused to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.626[69] Such right contemplates effective communication which results in the subject understanding what is conveyed.627[70] The right to counsel is a fundamental right and is intended to preclude the slightest coercion as would lead the accused to admit something false. 628 [71] The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused.629[72] The lawyer called to be present during such investigation should be, as far as reasonably possible, the choice of the accused. If the lawyer is one furnished in behalf of accused, he should be competent and independent; that is, he must be willing to fully

625[67] 626[69] 627[70] 628[71] 629[72]

People v. Base, 385 Phil. 803, 815 (2000). People v. Sayaboc, 464 Phil. 824, 839 (2004). People v. Agustin, 310 Phil. 594, 612 (1995). People v. Olermo, 454 Phil. 147, 165 (2003). Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988, 162 SCRA 642, 653.

271 safeguard the constitutional rights of the accused. 630[73] A competent and independent counsel is logically required to be present and able to advice and assist his client from the time the latter answers the first question asked by the investigator until the signing of the confession. Moreover, the lawyer should ascertain that the confession was made voluntarily, and that the person under investigation fully understood the nature and the consequence of his extrajudicial confession vis-a-vis his constitutional rights. 631[74] However, the foregoing rule is not intended to deter to the accused from confessing guilt if he voluntarily and intelligently so desires, but to protect him from admitting what he is being coerced to admit although untrue. To be an effective counsel, a lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him; but, rather, it was adopted in our Constitution to preclude the slightest coercion on the accused to admit something false. The counsel should never prevent an accused from freely and voluntarily telling the truth.632[75] We have gone over the records and found that the PAOCTF investigators have duly apprised appellants Arnaldo and Flores of their constitutional rights to remain silent and to have competent and independent counsel of their own choice during their respective custodial investigations. The Pasubali633[76] of appellants Arnaldo and Floress written extrajudicial confessions clearly shows that before they made their respective confessions, the PAOCTF investigators had informed them that the interrogation about to be conducted on them referred to the kidnapping of the Yao family. Thereafter, the PAOCTF agents explained to them that they had a constitutional right to remain silent, and that anything they would say may be used against them in a court of law. They were also told that they were entitled to a counsel of their own choice, and that they would be provided with one if they had none. When asked if they had a lawyer of their own, appellant Arnaldo replied that he would be assisted by Atty. Uminga, while appellant Flores agreed to be represented by Atty. Rous. Thereafter, when asked if they understood their said rights, they replied in the affirmative. The appraisal of their constitutional rights was done in the presence of their respective lawyers and in the Tagalog dialect, the language spoken and understood by them. Appellants Arnaldo and Flores and their respective counsels, Atty. Uminga and Atty. Rous, also signed and thumbmarked the extra-judicial confessions. Atty. Uminga and Atty. Rous attested to the veracity of the afore-cited facts in their respective court testimonies.634[77] Indeed, the appraisal of appellants constitutional rights was not merely perfunctory, because it appeared certain that appellants had understood and, in fact, exercised their fundamental rights after being informed thereof.

630[73] 631[74] 632[75] 633[76] 634[77]

People v. Deniega, G.R. No. 103499, 29 December 1995, 251 SCRA 626, 637. People v. Velarde, 434 Phil. 102, 119 (2002). People v. Base, supra note 67. Records, pp. 312-318. TSN, 25 September 2001 and 27 September 2001.

272 Records reflect that appellants Arnaldo and Reyes were likewise accorded their right to competent and independent counsel during their respective custodial investigations. As regards appellant Arnaldo, Atty. Uminga testified that prior to the questioning of appellant Arnaldo about the incident, Atty. Uminga told the PAOCTF investigators and agents to give him and appellant Arnaldo space and privacy, so that they could freely converse. After the PAOCTF investigators and agents left them, he and appellant Arnaldo went to a cubicle where only the two of them were present. He interviewed appellant Arnaldo in the Tagalog language regarding the latters personal circumstances and asked him why he was in the PAOCTF office and why he wanted a lawyer. Appellant Arnaldo replied that he wanted to make a confession about his participation in the kidnapping of the Yao family. Thereupon, he asked appellant Arnaldo if the latter would accept his assistance as his lawyer for purposes of his confession. Appellant Arnaldo agreed. He warned appellant Arnaldo that he might be sentenced to death if he confessed involvement in the incident. Appellant Arnaldo answered that he would face the consequences because he was bothered by his conscience. He inquired from appellant Arnaldo if he was harmed or intimidated into giving selfincriminating statements to the PAOCTF investigators. Appellant Arnaldo answered in the negative. He requested appellant Arnaldo to remove his shirt for him to check if there were torture marks on his body, but he found none. He also observed that appellant Arnaldos appearance and movements were normal. His conference with appellant Arnaldo lasted for 15 minutes or more. Thereafter, he allowed the PAOCTF investigators to question appellant Arnaldo.635[78] Further, Atty. Uminga sat beside appellant Arnaldo during the inquiry and listened to the latters entire confession. After the taking of appellant Arnaldos confession, Atty. Uminga requested the PAOCTF investigators to give him a copy of appellant Arnaldos confession. Upon obtaining such copy, he read it entirely and thereafter gave it to appellant Arnaldo. He instructed appellant Arnaldo to read and comprehend the same carefully. He told appellant Arnaldo to ask him for clarification and comment if he did not agree or understand any part of his written confession. Appellant Arnaldo read his entire written confession and handed it to him. Atty. Uminga asked him if he had objections to it. Appellant Arnaldo replied in the negative. He then reminded appellant Arnaldo that the latter could still change his mind, and that he was not being forced to sign. Appellant Arnaldo manifested that he would sign his written confession. Later, he and appellant Arnaldo affixed their signatures to the written confession.636[79] With respect to appellant Flores, Atty. Rous declared that before the PAOCTF investigators began questioning appellant, Atty. Rous interviewed him in Tagalog inside a room, where only the two of them were present. He asked appellant Flores about his personal circumstances. Appellant Flores replied that he was a suspect in the kidnapping of the Yao family, and he wanted to give a confession regarding his involvement in the said incident.
635[78] 636[79]

TSN, 27 September 2001, pp. 5-9. Id. at 9-15.

273 He asked appellant Flores whether he would accept his assistance as his lawyer. Appellant Flores affirmed that he would. He asked appellant Flores why he wanted to give such confession. Appellant Flores answered that he was bothered by his conscience. Atty. Rous warned appellant Flores that his confession would be used against him in a court of law, and that the death penalty might be imposed on him. Appellant Flores told him that he wanted to tell the truth and unload the burden on his mind. He requested appellant Flores to lift his shirt for the former to verify if there were torture marks or bruises on his body, but found none. Again, he cautioned appellant Flores about the serious consequences of his confession, but the latter maintained that he wanted to tell the truth. Thereafter, he permitted the PAOCTF investigators to question appellant Flores.637[80] Additionally, Atty. Rous stayed with appellant Flores while the latter was giving statements to the PAOCTF investigators. After the taking of appellant Flores statements, he instructed appellant Flores to read and check his written confession. Appellant Flores read the same and made some minor corrections. He also read appellant Flores written confession. Afterwards, he and appellant Flores signed the latters written confession.638[81] It is true that it was the PAOCTF which contacted and suggested the availability of Atty. Uminga and Atty. Rous to appellants Arnaldo and Flores, respectively. Nonetheless, this does not automatically imply that their right to counsel was violated. What the Constitution requires is the presence of competent and independent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest.639[82] There was no conflict of interest with regard to the legal assistance rendered by Atty. Uminga and Atty. Rous. Both counsels had no interest adverse to appellants Arnaldo and Flores. Although Atty. Uminga testified that he was a former National Bureau of Investigation (NBI) agent, he, nevertheless, clarified that he had been separated therefrom since 1994 640[83] when he went into private practice. Atty. Uminga declared under oath that he was a private practitioner when he assisted appellant Arnaldo during the custodial investigation. 641[84] It appears that Atty. Uminga was called by the PAOCTF to assist appellant Arnaldo, because Atty. Umingas telephone number was listed on the directory of his former NBI officemates detailed at the PAOCTF. Atty. Rous, on the other hand, was a member of the Free Legal Aid Committee of the Integrated Bar of the Philippines, Quezon City at the time he rendered legal assistance to appellant Flores.642[85] Part of Atty. Rous duty as member of the said group was to render legal assistance to the indigents including suspects under custodial investigation. There was no evidence showing that Atty. Rous had organizational or personal links to the PAOCTF. In fact, he proceeded to the PAOCTF office to assist appellant Flores, because he

637[80] 638[81] 639[82] 640[83] 641[84] 642[85]

TSN, 25 September 2001, pp. 2-14. Id. at 14-19. People v. Velarde, supra note 74. TSN, 27 September 2001, p. 5. Id. TSN, 25 September 2001, pp. 4-5.

274 happened to be the lawyer manning the office when the PAOCTF called.643[86] In People v. Fabro,644[87] we stated: The Constitution further requires that the counsel be independent; thus, he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused. Atty. Jungco does not fall under any of said enumeration. Nor is there any evidence that he had any interest adverse to that of the accused. The indelible fact is that he was president of the Zambales Chapter of the Integrated Bar of the Philippines, and not a lackey of the lawmen. Further, as earlier stated, under Section 12(1), Article III of the 1987 Constitution, an accused is entitled to have competent and independent counsel preferably of his own choice. The phrase preferably of his own choice does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. Otherwise, the tempo of custodial investigation would be solely in the hands of the accused who can impede, nay, obstruct, the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.645[88] While the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not available is naturally lodged in the police investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection to the counsels appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer.646[89] Appellants Arnaldo and Flores did not object to the appointment of Atty. Uminga and Atty. Rous as their lawyers, respectively, during their custodial investigation. Prior to their questioning, appellants Arnaldo and Flores conferred with Atty. Uminga and Atty. Rous. Appellant Arnaldo manifested that he would be assisted by Atty. Uminga, while appellant Flores agreed to be counseled by Atty. Rous. Atty. Uminga and Atty. Rous countersigned the written extra-judicial confessions of appellants Arnaldo and Flores, respectively. Hence, appellants Arnaldo and Flores are deemed to have engaged the services of Atty. Uminga and Atty. Rous, respectively. Since the prosecution has sufficiently established that the respective extra-judicial confessions of appellant Arnaldo and appellant Flores were obtained in accordance with the constitutional guarantees, these confessions are admissible. They are evidence of a high order because of the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime, unless prompted by truth and conscience. 647[90]
643[86] 644[87] 645[88] 646[89] 647[90]

Id. at 6. Supra note 65 at 726. People v. Mojello, 468 Phil. 944, 954 (2004). People v. Base, supra note 67. People v. Bagnate, G.R. Nos. 133685-86, 20 May 2004, 428 SCRA 633, 651.

275 Consequently, the burden of proving that undue pressure or duress was used to procure the confessions rests on appellants Arnaldo and Flores.648[91] In the case at bar, appellants Arnaldo and Flores failed to discharge their burden of proving that they were forced or coerced to make their respective confessions. Other than their self-serving statements that they were maltreated by the PAOCTF officers/agents, they did not present any plausible proof to substantiate their claims. They did not submit any medical report showing that their bodies were subjected to violence or torture. Neither did they file complaints against the persons who had allegedly beaten or forced them to execute their respective confessions despite several opportunities to do so. Appellants Arnaldo and Flores averred that they informed their family members/relatives of the alleged maltreatment, but the latter did not report such allegations to proper authorities. On the contrary, appellants Arnaldo and Flores declared in their respective confessions that they were not forced or harmed in giving their sworn statements, and that they were not promised or given any award in consideration of the same. Records also bear out that they were physically examined by doctors before they made their confessions.649[92] Their physical examination reports certify that no external signs of physical injury or any form of trauma were noted during their examination.650[93] In People v. Pia,651[94] we held that the following factors indicate voluntariness of an extra-judicial confession: (1) where the accused failed to present credible evidence of compulsion or duress or violence on their persons; (2) where they failed to complain to the officers who administered the oaths; (3) where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; (4) where there appeared to be no marks of violence on their bodies; and (5) where they did not have themselves examined by a reputable physician to buttress their claim. It should also be noted that the extra-judicial confessions of appellants Arnaldo and Flores are replete with details on the manner in which the kidnapping was committed, thereby ruling out the possibility that these were involuntarily made. Their extra-judicial confessions clearly state how appellants and their cohorts planned the kidnapping as well as the sequence of events before, during and after its occurrence. The voluntariness of a confession may be inferred from its language if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused.652[95] With respect to appellant Reyess claim that the extra-judicial confessions of appellants Arnaldo and Flores cannot be used in evidence against him, we have ruled that although an extra-judicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his co-

648[91] 649[92] 650[93] 651[94] 652[95]

People v. Fabro, supra note 65. Records, p. 18. Id. at 19. 229 Phil. 577, 582 (1986). People v. Bagnate, supra note 90.

276 accused.653[96] In People v. Alvarez,654[97] we ruled that where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator, that confession is receivable as evidence against a co-accused. In People v. Encipido655[98] we elucidated as follows: It is also to be noted that APPELLANTS extrajudicial confessions were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latters actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. Appellants Arnaldo and Flores stated in their respective confessions that appellant Reyes participated in their kidnapping of the Yao family. These statements are, therefore, admissible as corroborative and circumstantial evidence to prove appellant Reyes guilt. The person who assisted him in court during his arraignment and pre-trial is not a lawyer. PEDRO CONSULTA VS. PEOPLE, G.R. No. 17942, February 12, 2009 CARPIO MORALES, J.: On the matter of accused-appellants claim of having been denied due process, an examination of the records shows that while accused-appellant was represented by Atty. Jocelyn P. Reyes, who seems not a lawyer, during the early stages of trial, the latter withdrew her appearance with the conformity of the former as early as July 28, 2000 and subsequently, approved by the RTC in its Order dated August 4, 2000. Thereafter, accusedappellant was represented by Atty. Rainald C. Paggao from the Public Defenders (Attorneys) Office of Makati City. Since the accused-appellant was already represented by a member of the Philippine Bar who principally handled his defense, albeit unsuccessfully, then he cannot now be heard to complain about having been denied of due process.656[3] (Underscoring supplied) That appellants first counsel may not have been a member of the bar does not dent the proven fact that appellant prevented Nelia and company
653[96] 654[97] 655[98] 656
[3]

Santos v. Sandiganbayan, 400 Phil. 1175, 1206 (2000). G.R. No. 88451, 5 September 1991, 201 SCRA 364, 377. 230 Phil. 560, 574 (1986).
Rollo, p. 169

277 from proceeding to their destination. Further, appellant was afforded competent representation by the Public Attorneys Office during the presentation by the prosecution of the medico-legal officer and during the presentation of his evidence. People v. Elesterio657[4] enlightens: As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is observed that he was chosen by the accused himself and that his representation does not change the fact that Elesterio was undeniably carrying an unlicensed firearm when he was arrested. At any rate, he has since been represented by a member of the Philippine bar, who prepared the petition for habeas corpus and the appellants brief. (Underscoring supplied) The right to bail in extradition cases. GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION VS. HON. FELIXBERTO OLALIA, JR., 521 SCRA 470 In UNITED STATES VS. JUDGE PURUGGANAN, 389 SCRA 623, it was held that the constitutional provision on bail does not available in extradition proceedings. It applies only in criminal proceedings because of the word conviction. However, the modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. As such, the right to bail was applied in a deportation proceedings, i.e., MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70 [1951] and justified the same with the Universal declaration of Human Rights. If the right to bail is available in deportation cases, then there is no reason why it is not allowed in extradition proceedings. BEFORE A PROSPECTIVE EXTRADITEE IS ALLOWED TO PUT UP BAIL, HE MUST PROVE BY CLEAR AND CONVINCING EVIDENCE THAT HE IS NOT A FLIGHT RISK AND WILL ABIDE WITH ALL ORDERS AND PROCESSES OF THE EXTRADITION COURT. EVEN IF THE DECISION OF CONVICTION IS ALREADY FINAL AND EXECUTORY, THE CASE MAY STILL BE RE-OPENED IF THERE IS GROSSNEGLIGENCE ON THE PART OF ACCUSEDS COUNSEL THEREBY VIOLATING HIS RIGHT TO DUE PROCESS/COUNSEL. JOHN HILARIO VS. PEOPLE OF THE PHILIPPINES, G.R. No.
657
[4]

G.R. No. 63971, May 9, 1989, 173 SCRA 243, 249.

278 161070, April 14, 2008 THE FACTS: Petitioner, together with one Gilbert Alijid (Alijid), was charged with two counts658[3] of Murder in the Regional Trial Court (RTC), Branch 76, Quezon City to which petitioner, assisted by counsel de parte, pleaded not guilty. During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO), counsel of Alijid, took over representing petitioner in view of the death of the latter's counsel. On December 5, 2001, the RTC rendered its Decision659[4] finding petitioner and his co-accused Alijid guilty beyond reasonable doubt of the crime of homicide and sentencing them to suffer imprisonment of eight (8) years and one (1) day of prision mayor to fourteen (14) years and eight (8) months of reclusion temporal in each count. On May 10, 2002, petitioner, this time unassisted by counsel, filed with the RTC a Petition for Relief660[5] from the Decision dated December 5, 2001 together with an affidavit of merit. In his petition, petitioner contended that at the time of the promulgation of the judgment, he was already confined at Quezon City Jail and was directed to be committed to the National Penitentiary in Muntinlupa; that he had no way of personally filing the notice of appeal thus he instructed his lawyer to file it on his behalf; that he had no choice but to repose his full trust and confidence to his lawyer; that he had instructed his lawyer to file the necessary motion for reconsideration or notice of appeal; that on May 2, 2002, he was already incarcerated at the New Bilibid Prisons, Muntinlupa City and learned from the grapevine of his impending transfer to the Iwahig Penal Colony, Palawan; that believing that the notice of appeal filed by his counsel prevented the Decision dated December 5, 2001 from becoming final to warrant his transfer, he instructed his representative to get a copy of the notice of appeal from the RTC; that no notice of appeal was filed by his lawyer in defiance of his clear instructions; and that the RTC Decision showed that it was received by his counsel on February 1, 2002 and yet the counsel did not inform him of any action taken thereon. I S S U E: Whether or not the delay in appealing the instant case due to the defiance or failure of the petitioner's counsel de oficio to seasonably file a Notice of Appeal, constitutes excusable negligence to entitle the undersigned detention prisoner/ petitioner to pursue his appeal? Whether or not pro hac vice, the mere invocation of justice warrants the review of a final and executory judgment? HELD: Petitioner contends that the negligence of his counsel de oficio cannot be binding on him for the latter's defiance of his instruction to appeal automatically breaks
658 659 660
[3] [4] [5]

Docketed as Criminal Case Nos. Q-00-91647-48. Penned by Judge Monina A. Zenarosa, rollo, pp. 36-52. Id. at 53-60.

279 the fiduciary relationship between counsel-client and cannot be against the client who was prejudiced; that this breach of trust cannot easily be concocted in this situation considering that it was a counsel de oficio, a lawyer from PAO, who broke the fiduciary relationship; that the assailed CA Resolutions both harped on technicalities to uphold the dismissal by the RTC of his petition for relief; that reliance on technicalities to the prejudice of petitioner who is serving 14 years imprisonment for a crime he did not commit is an affront to the policy promulgated by this Court that dismissal purely on technical grounds is frowned upon especially if it will result to unfairness; and that it would have been for the best interest of justice for the CA to have directed the petitioner to complete the records instead of dismissing the petition outright. In his Comment, the OSG argues that the mere invocation of justice does not warrant the review of an appeal from a final and executory judgment; that perfection of an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional and failure to perfect the appeal renders the judgment sought to be reviewed final and not appealable; and that petitioner's appeal after the finality of judgment of conviction is an exercise in futility, thus the RTC properly dismissed petitioner's petition for relief from judgment. The OSG further claims that notice to counsel is notice to clients and failure of counsel to notify his client of an adverse judgment would not constitute excusable negligence and therefore binding on the client. We grant the petition. A litigant who is not a lawyer is not expected to know the rules of procedure. In fact, even the most experienced lawyers get tangled in the web of procedure.661[12] We have held in a civil case that to demand as much from ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into an intimidating monstrosity where an individual may be stripped of his property rights not because he has no right to the property but because he does not know how to establish such right.662[13] This finds application specially if the liberty of a person is at stake. As we held in Telan v. Court of Appeals: The right to counsel in civil cases exists just as forcefully as in criminal cases, especially so when as a consequence, life, liberty, or property is subjected to restraint or in danger of loss. In criminal cases, the right of an accused person to be assisted by a member of the bar is immutable. Otherwise, there would be a grave denial of due process. Thus, even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel. xxxx Even the most experienced lawyers get tangled in the web of procedure. The demand as much from ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into an intimidating monstrosity where an individual
661 662
[12] [13]

See Telan v. Court of Appeals, G.R. No. 95026, October 4, 1991, 202 SCRA 534, 541. Id.

280 may be stripped of his property rights not because he has no right to the property but because he does not know how to establish such right. The right to counsel is absolute and may be invoked at all times. More so, in the case of an on-going litigation, it is a right that must be exercised at every step of the way, with the lawyer faithfully keeping his client company. No arrangement or interpretation of law could be as absurd as the position that the right to counsel exists only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal.663[14] (Emphasis supplied) To repeat the ruling in Telan, no arrangement or interpretation of law could be as absurd as the position that the right to counsel exists only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal.664[15] It is even more important to note that petitioner was not assisted by counsel when he filed his petition for relief from judgment with the RTC. It cannot be overstressed therefore, that in criminal cases, as held in Telan, the right of an accused person to be assisted by a member of the bar is immutable; otherwise, there would be a grave denial of due process. Cases should be determined on the merits after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be served better.665[16] While as a general rule, the failure of petitioner to file his motion for reconsideration within the 15-day reglementary period fixed by law rendered the resolution final and executory, we have on some occasions relaxed this rule. Thus, in Barnes v. Padilla666[17] we held: However, this Court has relaxed this rule in order to serve substantial justice considering (a) matters of life, liberty, honor or property, (b) the existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the other party will not be unjustly prejudiced thereby. Invariably, rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this Court itself had already declared to be final. In De Guzman v. Sandiganbayan, this Court, speaking through the late Justice Ricardo J. Francisco, had occasion to state:
663[14] 664 665 666
[15] [16] [17]

Id. at 540-541. Id. at 541. Garcia v. Philippine Airlines, Inc., supra note 11, at 781.
G.R. No. 160753, September 30, 2004, 439 SCRA 675.

281

The Rules of Court was conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering justice have always been, as they ought to be guided by the norm that when on the balance, technicalities take a backseat against substantive rights, and not the other way around. Truly then, technicalities, in the appropriate language of Justice Makalintal, "should give way to the realities of the situation. Indeed, the emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities.667[18] Rules of procedure are mere tools designed to expedite the decision or resolution of cases and other matters pending in court. A strict and rigid application of rules that would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided.668[21] Even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel.669[22] However, instead of remanding the case to the CA for a decision on the merits, we opt to resolve the same so as not to further delay the final disposition of this case. In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law. The importance and real purpose of the remedy of appeal has been emphasized in Castro v. Court of Appeals670[27] where we ruled that an appeal is an essential part of our judicial system and trial courts are advised to proceed with caution so as not to deprive a party of the right to appeal and instructed that every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities. While this right is statutory, once it is granted by law, however, its suppression would be a violation of due process, a right guaranteed by the Constitution. Thus, the importance of finding out whether petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not at all attributed to petitioner. The right to be informed of the nature and cause of accusation. When the same is considered waived. THE PEOPLE OF THE PHILIPPINES VS. JERRY NAZARENO, G.R. No. 167756, April 8, 2008 THE FACTS:
667 668 669 670
[18] [21]

Id. at 686-687. Cusi-Hernandez v. Spouses Diaz, 390 Phil. 1245, 1252 (2000). [22] Telan v. Court of Appeals, supra note 12, at 540-541; People of the Philippines v. Holgado, 85 Phil. 752, 756757 (1950); Flores v. Judge Ruiz, 179 Phil. 351, 355 (1979); Delgado v. Court of Appeals, 229 Phil. 362, 366 (1986).

282 On March 17, 1999, appellant Jerry Nazareno was indicted for violation of Article 266-A of the Revised Penal Code in Criminal Case No. 2638 for the alleged rape of BBB, his daughter. The information reads: That sometime and between January 1992 up to December 06, 1998, in Barangay Codon, Municipality of San Andres, Province of Catanduanes, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force, violence and intimidation did then and there willfully, unlawfully, feloniously and repeatedly made sexual intercourse with his daughter BBB at the age of 7 through 14 years old against her will. The Information is worded thus: That from sometime in January 1990 up to December 1998 in Barangay Codon, municipality of San Andres, Catanduanes, and within the jurisdiction of the Honorable Court, the said accused, being the father of the complainant, did then and there willfully, feloniously and criminally repeatedly had sexual intercourse with her daughter AAA, then five years old up to the time when she was 15-years-old against her will. CONTRARY TO LAW.671[18] After trial , the accused was found guilty of qualified rape in both cases. He appealed his conviction to the Court of Appeals in accordance with the People vs. Mateo Doctrine but the Court of Appeals affirmed the RTC Decision. Hence, this Petition before the Supreme Court. I S S U E: Is the constitutional right of the petitioner to be informed of the nature and cause of accusation against him violated since the information failed to specify with certainty the approximate date of the commission of the offenses for rape which is a fatal defect. H E L D: The argument is specious. An information is intended to inform an accused of the accusations against him in order that he could adequately prepare his defense. Verily, an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Thus, to ensure that the constitutional right of the accused to be informed of the nature and cause of the accusation against him is not violated, the information should state the name of the accused; the designation given to the offense by the statute; a statement of the acts or omissions so complained of as constituting the offense; the name of the offended party; the approximate time and date of the commission of the offense; and the place where the offense has been committed.672[27] Further, it must embody the essential elements of the crime charged by setting forth the facts and circumstances that have a bearing on the
671[18]

Records, Vol. II, p. 18. People v. Quitlong, 354 Phil. 372, 388 (1998), citing Rules of Criminal Procedure (2000), Rule 110, Secs. 6 and 8.

672[27]

283 culpability and liability of the accused, so that he can properly prepare for and undertake his defense.673[28] However, it is not necessary for the information to allege the date and time of the commission of the crime with exactitude unless time is an essential ingredient of the offense.674[29] In People v. Bugayong,675[30] the Court held that when the time given in the information is not the essence of the offense, the time need not be proven as alleged; and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. In People v. Gianan,676[31] the Court ruled that the time of the commission of rape is not an element of the said crime as it is defined in Article 335 of the Revised Penal Code. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated therein, i.e.: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age or is demented. In accordance with Rule 110, Section 11 of the 2000 Rules of Criminal Procedure, as long as it alleges that the offense was committed at any time as near to the actual date at which the offense was committed, an information is sufficient. The doctrine was reiterated with greater firmness in People v. Salalima677[32] and in People v. Lizada.678[33] In the case under review, the information in Criminal Case No. 2638 alleged that the rape of BBB transpired sometime and between January 1992 up to December 6, 1998 in Barangay Codon, Municipality of San Andres, Province of Catanduanes. In Criminal Case No. 2650, the information averred that from sometime in January 1990 up to December 1998 in Barangay Codon, Municipality of San Andres, Province of Catanduanes, AAA was raped by appellant. To the mind of the Court, the recitals in the informations sufficiently comply with the constitutional requirement that the accused be informed of the nature and cause of the accusation against him. In People v. Garcia,679[34] the Court upheld a conviction for ten counts of rape based on an Information which alleged that the accused committed multiple rapes from November 1990 up to July 21, 1994. In People v. Espejon,680[35] the Court found the appellant liable for rape under an information charging that he perpetrated the offense sometime in the year
673[28]

Id.

674[29]

People v. Santos, 390 Phil. 150, 161 (2000); Rules of Criminal Procedure (2000), Rule 110, Sec. 11 reads: Sec. 11. Date of commission of the offense. It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. 675[30] G.R. No. 126518, December 2, 1998, 299 SCRA 528. 676[31] G.R. Nos. 135288-93, September 15, 2000, 340 SCRA 477. 677[32] G.R. Nos. 137969-71, August 15, 2001, 363 SCRA 192. 678[33] G.R. Nos. 143468-71, January 24, 2003, 396 SCRA 62. 679[34] G.R. No. 120093, November 6, 1997, 281 SCRA 463. 680[35] G.R. No. 134767, February 20, 2002, 377 SCRA 412.

284 1982 and dates subsequent thereto and sometime in the year 1995 and subsequent thereto. In the case under review, the information in Criminal Case No. 2638 alleged that the rape of BBB transpired sometime and between January 1992 up to December 6, 1998 in Barangay Codon, Municipality of San Andres, Province of Catanduanes. In Criminal Case No. 2650, the information averred that from sometime in January 1990 up to December 1998 in Barangay Codon, Municipality of San Andres, Province of Catanduanes, AAA was raped by appellant. To the mind of the Court, the recitals in the informations sufficiently comply with the constitutional requirement that the accused be informed of the nature and cause of the accusation against him. Indeed, this Court has ruled that allegations that rapes were committed before and until October 15, 1994,681[36] sometime in the year 1991 and the days thereafter,682[37] and on or about and sometime in the year 1988683[38] constitute sufficient compliance with Rule 110, Section 11 of the 2000 Rules of Criminal Procedure. More than that, the Court notes that the matter of particularity of the dates in the information is being raised for the first time on appeal. The rule is well-entrenched in this jurisdiction that objections as to matter of form or substance in the information cannot be made for the first time on appeal. 684[39] Appellant failed to raise the issue of defective informations before the trial court. He could have moved to quash the informations or at least for a bill of particulars. He did not. Clearly, he slumbered on his rights and awakened too late. Too, appellant did not object to the presentation of the evidence for the People contending that the offenses were committed sometime and between January 1992 up to December 6, 1998 for Criminal Case No. 2632 and sometime in January 1990, up to December 1998 in Criminal Case No. 2650. On the contrary, appellant actively participated in the trial, offering denial and alibi as his defenses. Simply put, he cannot now be heard to complain that he was unable to defend himself in view of the vagueness of the recitals in the informations. REASONS FOR THE CONSTITUTIONAL PROVISION ON THE RIGHT OF THE ACCUSED TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION DE LA CRUZ VS. PEOPLE OF THE PHILIPPINES , G.R. No. 175929, December 16, 2008
681[36] 682[37]

People v. Bugayong, supra note 30. People v. Magbanua, G.R. No. 128888, December 3, 1999, 319 SCRA 719. 683[38] People v. Santos, G.R. Nos. 131103 & 143472, June 29, 2000, 334 SCRA 655. 684[39] People v. Razonable, 386 Phil. 771, 780 (2000).

285 It is true that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him. 685[88] The Constitution uses the word shall, hence, the same is mandatory. A violation of this right prevents the conviction of the accused with the crime charged in the Information. The constitutional guaranty has a three-fold purpose: First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction.686[89] JEFFREY RESO DAYAP vs. PRETZY-LOU SENDIONG, GENESA SENDIONG, ELVIE SY and DEXIE DURAN, G.R. No. 177960, January 29, 2009

The case had its origins in the filing of an Information687[4] on 29 December 2004 by the Provincial Prosecutors Office, Sibulan, Negros Oriental, charging herein petitioner Jeffrey Reso Dayap with the crime of Reckless Imprudence resulting to Homicide, Less Serious Physical Injuries, and Damage to Property. The pertinent portion of the information reads: That at about 11:55 oclock in the evening of 28 December 2004 at Brgy. Maslog, Sibulan, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and feloniously drive in a reckless and imprudent manner a 10-wheeler cargo truck with plate number ULP-955, color blue, fully loaded with sacks of coconut shell, registered in the name of Ruben Villabeto of Sta. Agueda Pamplona, Negros Oriental, thereby hitting an automobile, a Colt Galant with plate number NLD-379 driven by Lou Gene R. Sendiong who was with two female passengers, namely: Dexie Duran and Elvie Sy, thus causing the instantaneous death of said Lou Gene R. Sendiong, less serious physical injuries on the bodies of Dexie Duran and Elvie Sy and extensive damage to the above-mentioned Colt Galant which is registered in the name of Cristina P. Weyer of 115 Dr. V. Locsin St., Dumaguete City, to the damage of the heirs of the same Lou Gene R. Sendiong and the other two offended parties above-mentioned. An act defined and penalized by Article 365 of the Revised Penal Code.

685 686
687 [4]

Records, p. 32.

286 On 10 January 2005, before the Municipal Trial Court (MTC) of Sibulan, Negros Oriental, petitioner was arraigned and he pleaded not guilty to the charge.688[5] On 17 January 2005, respondents Pretzy-Lou P. Sendiong, Genesa Sendiong and Dexie Duran filed a motion for leave of court to file an amended information.689[6] They sought to add the allegation of abandonment of the victims by petitioner, thus: The driver of the 10-wheeler cargo truck abandoned the victims, at a time when said [Lou-Gene] R. Sendiong was still alive inside the car; he was only extracted from the car by the bystanders.690[7] On 21 January 2005, however, the Provincial Prosecutor filed an Omnibus Motion praying that the motion to amend the information be considered withdrawn.691[8] On 21 January 2003, the MTC granted the withdrawal and the motion to amend was considered withdrawn.692[9] Pre-trial and trial of the case proceeded. Respondents testified for the prosecution. After the prosecution had rested its case, petitioner sought leave to file a demurrer to evidence which was granted. Petitioner filed his Demurrer to Evidence693[10] dated 15 April 2005 grounded on the prosecutions failure to prove beyond reasonable doubt that he is criminally liable for reckless imprudence, to which respondents filed a Comment694[11] dated 25 April 2005. In the Order695[12] dated 16 May 2005, the MTC granted the demurrer and acquitted petitioner of the crime of reckless imprudence. The MTC found that the evidence presented by respondents failed to establish the allegations in the Information. Pertinent portions of the order state: An examination of the allegations in the information and comparing the same with the evidence presented by the prosecution would reveal that the evidence presented has not established said allegations. The facts and circumstances constituting the allegations charged have not been proven. It is elementary in the rules of evidence that a party must prove his own affirmative allegations. xxxx
688 [5] 689 [6] 690 [7]

Rollo, p. 44; See Order dated 10 January 2005. Records, pp. 34-36. Id. at 37. Id. at 41. Rollo, p. 55. Records, pp. 80-92. Id. at 93-94. Rollo, pp. 72-74.

691 [8] 692 [9] 693 [10] 694 [11] 695 [12]

287 Nowhere in the evidence of the prosecution can this Court find that it was the accused who committed the crime as charged. Its witnesses have never identified the accused as the one who has committed the crime. The prosecution never bothered to establish if indeed it was the accused who committed the crime or asked questions which would have proved the elements of the crime. The prosecution did not even establish if indeed it was the accused who was driving the truck at the time of the incident. The Court simply cannot find any evidence which would prove that a crime has been committed and that the accused is the person responsible for it. There was no evidence on the allegation of the death of Lou Gene R. Sendiong as there was no death certificate that was offered in evidence. The alleged less serious physical injuries on the bodies of Dexie Duran and Elvie Sy were not also proven as no medical certificate was presented to state the same nor was a doctor presented to establish such injuries. The alleged damage to the [C]olt [G]alant was also not established in any manner as no witness ever testified on this aspect and no documentary evidence was also presented to state the damage. The prosecution therefore failed to establish if indeed it was the accused who was responsible for the death of Lou Gene R. Sendiong and the injuries to Dexie Duran and Elvie Sy, including the damage to the Colt Galant. The mother of the victim testified only on the expenses she incurred and the shock she and her family have suffered as a result of the incident. But sad to say, she could not also pinpoint if it was the accused who committed the crime and be held responsible for it. This Court could only say that the prosecution has practically bungled this case from its inception. xxxx The defense furthermore argued that on the contrary, the prosecutions [evidence] conclusively show that the swerving of vehicle 1 [the Colt Galant] to the lane of vehicle 2 [the cargo truck] is the proximate cause of the accident. The court again is inclined to agree with this argument of the defense. It has looked carefully into the sketch of the accident as indicated in the police blotter and can only conclude that the logical explanation of the accident is that vehicle 1 swerved into the lane of vehicle 2, thus hitting the latters inner fender and tires. Exhibit 7 which is a picture of vehicle 2 shows the extent of its damage which was the effect of vehicle 1s ramming into the rear left portion of vehicle 2 causing the differential guide of vehicle 2 to be cut, its tires busted and pulled out together with their axle. The cutting of the differential guide cause[d] the entire housing connecting the tires to the truck body to collapse, thus causing vehicle 2 to tilt to its left side and swerve towards the lane of vehicle 1. It was this accident that caused the swerving, not of [sic] any negligent act of the accused. xxxx Every criminal conviction requires of the prosecution to prove two thingsthe fact of the crime, i.e., the presence of all the elements of the crime for which the accused stands charged, and the fact that the accused is the perpetrator of the crime. Sad to say, the prosecution has miserably failed to prove these two things. When the prosecution fails to discharge its burden

288 of establishing the guilt of the accused, an accused need not even offer evidence in his behalf. xxxx WHEREFORE, premises considered, the demurrer is granted and the accused JEFFREY RESO DAYAP is hereby acquitted for insufficiency of evidence. The bail bond posted for his temporary liberty is also hereby cancelled and ordered released to the accused or his duly authorized representative. SO ORDERED.696[13] Respondents thereafter filed a petition for certiorari under Rule 65, 697 alleging that the MTCs dismissal of the case was done without considering the evidence adduced by the prosecution. Respondents added that the MTC failed to observe the manner the trial of the case should proceed as provided in Sec. 11, Rule 119 of the Rules of Court as well as failed to rule on the civil liability of the accused in spite of the evidence presented. The case was raffled to the Regional Trial Court (RTC) of Negros Oriental, Br. 32.
[14]

In the order698[15] dated 23 August 2005, the RTC affirmed the acquittal of petitioner but ordered the remand of the case to the MTC for further proceedings on the civil aspect of the case. The RTC ruled that the MTCs recital of every fact in arriving at its conclusions disproved the allegation that it failed to consider the evidence presented by the prosecution. The records also demonstrated that the MTC conducted the trial of the case in the manner dictated by Sec. 11, Rule 119 of the Rules of Court, except that the defense no longer presented its evidence after the MTC gave due course to the accuseds demurrer to evidence, the filing of which is allowed under Sec. 23, Rule 119. The RTC however agreed that the MTC failed to rule on the accuseds civil liability, especially since the judgment of acquittal did not include a declaration that the facts from which the civil liability might arise did not exist. Thus, the RTC declared that the aspect of civil liability was not passed upon and resolved to remand the issue to the MTC. The dispositive portion of the decision states: WHEREFORE, the questioned order of the Municipal Trial Court of Sibulan on accuseds acquittal is AFFIRMED. The case is REMANDED to the court of origin or its successor for further proceedings on the civil aspect of the case. No costs. SO ORDERED.699[16]
696 [13] 697 [14] 698 [15] 699 [16]

Id. at 72 and 74. Records, pp. 3-11. Rollo, pp. 75-81. Id. at 81.

289

Both parties filed their motions for reconsideration of the RTC order, but these were denied for lack of merit in the order 700[17] dated 12 September 2005. Respondents then filed a petition for review with the Court of Appeals under Rule 42, docketed as CA-G.R. SP. No. 01179. The appellate court subsequently rendered the assailed decision and resolution. The Court of Appeals ruled that there being no proof of the total value of the properties damaged, the criminal case falls under the jurisdiction of the RTC and the proceedings before the MTC are null and void. In so ruling, the appellate court cited Tulor v. Garcia (correct title of the case is Cuyos v. Garcia)701[18] which ruled that in complex crimes involving reckless imprudence resulting in homicide or physical injuries and damage to property, the jurisdiction of the court to take cognizance of the case is determined by the fine imposable for the damage to property resulting from the reckless imprudence, not by the corresponding penalty for the physical injuries charged. It also found support in Sec. 36 of the Judiciary Reorganization Act of 1980 and the 1991 Rule 8 on Summary Procedure, which govern the summary procedure in first-level courts in offenses involving damage to property through criminal negligence where the imposable fine does not exceed P10,000.00. As there was no proof of the total value of the property damaged and respondents were claiming the amount of P1,500,000.00 as civil damages, the case falls within the RTCs jurisdiction. The dispositive portion of the Decision dated 17 August 2006 reads: WHEREFORE, premises considered, judgment is hereby rendered by Us REMANDING the case to the Regional Trial Court (RTC), Judicial Region, Branch 32, Negros Oriental for proper disposition of the merits of the case. SO ORDERED.702[19] Petitioner moved for reconsideration of the Court of Appeals decision,703[20] arguing that jurisdiction over the case is determined by the allegations in the information, and that neither the 1991 Rule on Summary Procedure nor Sec. 36 of the Judiciary Reorganization Act of 1980 can be the basis of the RTCs jurisdiction over the case. However, the Court of Appeals denied the motion for reconsideration for lack of merit in the Resolution dated 25 April 2007.704[21] It reiterated that it is the RTC that has proper jurisdiction considering that the information alleged a willful, unlawful, felonious killing as well as abandonment of the victims.

700 [17] 701 [18] 702 [19] 703 [20] 704 [21]

Id. at 89-90. No. L-46934, 15 April 1998, . Rollo, p. 35. Id. at 90-94. Supra note 2.

290 In the present petition for review, petitioner argues that the MTC had jurisdiction to hear the criminal case for reckless imprudence, owing to the enactment of Republic Act (R.A.) No. 7691,705[22] which confers jurisdiction to first-level courts on offenses involving damage to property through criminal negligence. He asserts that the RTC could not have acquired jurisdiction on the basis of a legally unfiled and officially withdrawn amended information alleging abandonment. Respondents are also faulted for challenging the MTCs order acquitting petitioner through a special civil action for certiorari under Rule 65 in lieu of an ordinary appeal under Rule 42. The petition has merit. It should be granted. The first issue is whether the Court of Appeals erred in ruling that jurisdiction over the offense charged pertained to the RTC. Both the MTC and the RTC proceeded with the case on the basis of the Information dated 29 December 2004 charging petitioner only with the complex crime of reckless imprudence resulting to homicide, less serious physical injuries and damage to property. The Court of Appeals however declared in its decision that petitioner should have been charged with the same offense but aggravated by the circumstance of abandonment of the victims. It appears from the records however that respondents attempt to amend the information by charging the aggravated offense was unsuccessful as the MTC had approved the Provincial Prosecutors motion to withdraw their motion to amend the information. The information filed before the trial court had remained unamended.706[23] Thus, petitioner is deemed to have been charged only with the offense alleged in the original Information without any aggravating circumstance. Article 365 of the Revised Penal Code punishes any person who, by reckless imprudence, commits any act which, had it been intentional, would constitute a grave felony, with the penalty of arresto mayor in its maximum period to prision correccional in its medium period. When such reckless imprudence the use of a motor vehicle, resulting in the death of a person attended the same article imposes upon the defendant the penalty of prision correccional in its medium and maximum periods. The offense with which petitioner was charged is reckless imprudence resulting in homicide, less serious physical injuries and damage to property, a complex crime. Where a reckless, imprudent, or negligent act results in two or more grave or less grave felonies, a complex crime is committed. 707[24] Article 48 of the Revised Penal Code provides that when the single act constitutes two or more grave or less grave felonies, or when an offense is a
705 [22] Entitled AN ACT EXPANDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS, AMENDING FOR THE PURPOSE BATAS PAMBANSA BLG. 129, OTHERWISE KNOWN AS THE JUDICIARY REORGANIZATION ACT OF 1980, which took effect on 14 April 1994. 706 [23] 707 [24]

See notes 8 and 9. People v. de los Santos, 407 Phil. 724, 744 (2001, citing Reodica v. Court of Appeals, 292 SCRA 87, 102 (1998).

291 necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Since Article 48 speaks of felonies, it is applicable to crimes through negligence in view of the definition of felonies in Article 3 as acts or omissions punishable by law committed either by means of deceit (dolo) or fault (culpa).708[25] Thus, the penalty imposable upon petitioner, were he to be found guilty, is prision correccional in its medium period (2 years, 4 months and 1 day to 4 years) and maximum period (4 years, 2 months and 1 day to 6 years). Applicable as well is the familiar rule that the jurisdiction of the court to hear and decide a case is conferred by the law in force at the time of the institution of the action, unless such statute provides for a retroactive application thereof.709[26] When this case was filed on 29 December 2004, Section 32(2) of Batas Pambansa Bilang 129 had already been amended by R.A. No. 7691. R.A. No. 7691 extended the jurisdiction of the first-level courts over criminal cases to include all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties including those for civil liability. It explicitly states that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. It follows that criminal cases for reckless imprudence punishable with prision correccional in its medium and maximum periods should fall within the jurisdiction of the MTC and not the RTC. Clearly, therefore, jurisdiction to hear and try the same pertained to the MTC and the RTC did not have original jurisdiction over the criminal case. 710 [27] Consequently, the MTC of Sibulan, Negros Oriental had properly taken cognizance of the case and the proceedings before it were valid and legal. As the records show, the MTC granted petitioners demurrer to evidence and acquitted him of the offense on the ground of insufficiency of evidence. The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused.711[28] Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy.712[29] But while the dismissal order consequent to a demurrer to evidence is not subject to appeal, the same is still reviewable but only by certiorari under Rule 65 of the Rules of Court. Thus, in such case, the factual findings of the trial court are conclusive upon
708 [25] 709 [26] Venancio Figueroa y Cervantes v. People of the Philippines, G.R. No. 147406, 14 July 2008, citing Alarilla v. Sandiganbayan, 393 Phil. 143, 155 (2000) and Escovar v. Justice Garchitorena, 466 Phil. 625, 635 (2004). 710 [27] 711 [28] People v. Sandiganbayan, 488 Phil. 293, 310 (2004), citing People v. City of Silay, No. L-43790, 9 December 1976, 74 SCRA 247. 712 [29]

People v. de los Santos, 407 Phil. 724 (2001).

Venancio Figueroa y Cervantes v. People of the Philippines, G.R. No. 147406, 14 July 2008.

Id.

292 the reviewing court, and the only legal basis to reverse and set aside the order of dismissal upon demurrer to evidence is by a clear showing that the trial court, in acquitting the accused, committed grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void.713[30] Accordingly, respondents filed before the RTC the petition for certiorari alleging that the MTC gravely abused its discretion in dismissing the case and failing to consider the evidence of the prosecution in resolving the same, and in allegedly failing to follow the proper procedure as mandated by the Rules of Court. The RTC correctly ruled that the MTC did not abuse its discretion in dismissing the criminal complaint. The MTCs conclusions were based on facts diligently recited in the order thereby disproving that the MTC failed to consider the evidence presented by the prosecution. The records also show that the MTC correctly followed the procedure set forth in the Rules of Court. The second issue is whether the Court of Appeals erred in ordering the remand of the case of the matter of civil liability for the reception of evidence. We disagree with the Court of Appeals on directing the remand of the case to the RTC for further proceedings on the civil aspect, as well as with the RTC in directing a similar remand to the MTC. The acquittal of the accused does not automatically preclude a judgment against him on the civil aspect of the case. The extinction of the penal action does not carry with it the extinction of the civil liability where: (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused is acquitted. 714[31] However, the civil action based on delict may be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist715[32] or where the accused did not commit the acts or omission imputed to him.716[33] Thus, if demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist.717[34] This is because when the accused files a demurrer to evidence, he has not yet adduced evidence both on the criminal and civil aspects of the case. The only evidence on record is the evidence for
713 [30] 714 [31] 715 [32] 716 [33] 717 [34]

People v. Uy, G.R. No. 158157, 30 September 2005, 471 SCRA 668. Hun Hyung Park v. Eung Won Choi, G.R. No. 165496, 12 February 2007, 515 SCRA 502, 513. RULES OF COURT, Rule 111, Sec. 2, last par. Salazar v. People, 458 Phil. 504 (2003). Id. at 607.

293 the prosecution. What the trial court should do is issue an order or partial judgment granting the demurrer to evidence and acquitting the accused, and set the case for continuation of trial for the accused to adduce evidence on the civil aspect of the case and for the private complainant to adduce evidence by way of rebuttal. Thereafter, the court shall render judgment on the civil aspect of the case.718[35] A scrutiny of the MTCs decision supports the conclusion that the acquittal was based on the findings that the act or omission from which the civil liability may arise did not exist and that petitioner did not commit the acts or omission imputed to him; hence, petitioners civil liability has been extinguished by his acquittal. It should be noted that the MTC categorically stated that it cannot find any evidence which would prove that a crime had been committed and that accused was the person responsible for it. It added that the prosecution failed to establish that it was petitioner who committed the crime as charged since its witnesses never identified petitioner as the one who was driving the cargo truck at the time of the incident. Furthermore, the MTC found that the proximate cause of the accident is the damage to the rear portion of the truck caused by the swerving of the Colt Galant into the rear left portion of the cargo truck and not the reckless driving of the truck by petitioner, clearly establishing that petitioner is not guilty of reckless imprudence. Consequently, there is no more need to remand the case to the trial court for proceedings on the civil aspect of the case, since petitioners acquittal has extinguished his civil liability.

THE PROVINCE OF NORTH COTABATO, represented by Governor Jesus Sacdalan and Vice Governor Emmanuel Pinol vs. THE GOVERNMENT OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), et al., G.R. No. 183591, October 14, 2008

CARPIO MORALES, J.: On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.
718 [35]

Id. at 518-519.

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The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same. The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRPMILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998. On July 23, 2008, the Province of North Cotabato719[8] and Vice-Governor Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.720[9] Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.721[10] ISSUES: 1. Whether there is a violation of the peoples right to information on matters of public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;] If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy; 2. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; b) to revise or amend the Constitution and existing laws to conform to the MOA;

719 720 721

[8] [9]

Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piol. Rollo (G.R. No. 183591), pp. 3-33. [10] Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp. 143-162.

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c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;] If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines; 3. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and HELD: As per MO-AD, the territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-SuluPalawan geographic region.722[38] More specifically, the core of the BJE is defined as the present geographic area of the ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.723[39] Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.724[40] Category B areas, also called Special Intervention Areas, on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement the Comprehensive Compact.725[41] The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its internal waters, defined as extending fifteen (15) kilometers from the coastline of the BJE area;726[42] that the BJE shall also have territorial waters, which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the Central Government (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural

722 723 724 725 726

[38] [39] [40] [41] [42]

MOA-AD, Territory, par. 1. Id., par. 2(c). Id., par. 2(d). Id., par. 2(e). Id., par. 2(f).

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resources.727[43] Notably, the jurisdiction over the internal waters is not similarly described as joint. The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.728[44] The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures.729[45] There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE. The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental 730[46] cooperation agreements. The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to take necessary steps to ensure the BJEs participation in international meetings and events like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.731[47] With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE as the party having control within its territorial jurisdiction. This right carries the proviso that, in times of national emergency, when public interest so requires, the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources.732[48] The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.733[49] The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no

727 728 729 730 731 732 733

[43] [44] [45] [46] [47] [48] [49]

Id., par, 2(g)(1). Id., par. 2(h). Id., par. 2(i). MOA-AD, Resources, par. 4. Ibid. Id., par. 5. Id., par. 6.

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longer possible, reparation is to be in such form as mutually determined by the Parties.734

[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.735[51] The MOA-AD describes the relationship of the Central Government and the BJE as associative, characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring amendments to the existing legal framework shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision. The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the details of which shall be discussed in the negotiation of the comprehensive compact. As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as the representatives of the Parties, meaning the GRP and MILF themselves, and not merely of the negotiating panels.736[53] In addition, the signature page of the MOA-AD states that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, ENDORSED BY Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008. ON THE FIRST SUBSTANTIVE ISSUE

734 735 736

[50] [51]

Id., par. 7. Id., par. 9. [53] IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix their signatures.

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Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.737[107] As early as 1948, in Subido v. Ozaeta,738[108] the Court has recognized the statutory right to examine and inspect public records, a right which was eventually accorded constitutional status. The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right.739[109] In the 1976 case of Baldoza v. Hon. Judge Dimaano,740[110] the Court ruled that access to public records is predicated on the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political significance. x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases. x x x741[111] In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation742[112] so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.743[113]
737 738 739 740 741 742 743 [107] [108] [109] [110] [111] [112] [113]

CONSTITUTION, Article III, Sec. 7. 80 Phil. 383 (1948). Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530. 162 Phil. 868 (1976). Baldoza v. Dimaano, supra at 876. Legaspi v. Civil Service Commission, supra note 109. Chavez v. PCGG, 360 Phil 133, 164 (1998).

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The MOA-AD is a matter of public concern That the subject of the information sought in the present cases is a matter of public concern744[114] faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.745[115] In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,746[116] the need for adequate notice to the public of the various laws,747[117] the civil service eligibility of a public employee,748[118] the proper management of GSIS funds allegedly used to grant loans to public officials,749[119] the recovery of the Marcoses alleged ill-gotten wealth,750 [120] and the identity of party-list nominees,751[121] among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large. Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled: x x x [T]he right to information contemplates inclusion of negotiations leading to the consummation of the transaction. Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right
744 [114]

745 746 747

748 749 750 751

In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. `Public concern' like `public interest' is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [115] Respondents Comment of August 4, 2008, p. 9. [116] Subido v. Ozaeta, supra note 108. [117] Taada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Taada, v. Hon. Tuvera, 230 Phil. 528 (1986). [118] Legaspi v. Civil Service Commission, supra note 109. [119] Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256. [120] Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102. [121] Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523 SCRA 1.

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enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed policy of full disclosure of all its transactions involving public interest.752[122] (Emphasis and italics in the original) Intended as a splendid symmetry753[123] to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution reading: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.754[124] The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.755[125] The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the peoples right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy.756[126] These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people.757[127] Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose: MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it. MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer.758[128] The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
752 753 [122] [123]

754 755

756 757 758

Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002). Vide V RECORD, CONSTITUTIONAL COMMISSION 26-28 (September 24, 1986) which is replete with such descriptive phrase used by Commissioner Blas Ople. [124] CONSTITUTION, Article II, Sec. 28. [125] Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 100 (2003). [126] Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (1995). [127] Vide Chavez v. Public Estates Authority, supra note 122. [128] V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986).

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MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement? MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause as may be provided by law MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest? MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.759[129] (Emphasis supplied) Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for reasonable safeguards. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader760[130] right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy. An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will.761[131] Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms.

759

[129]

760

761

V RECORD, CONSTITUTIONAL COMMISSION 28-29 (September 24, 1986). The phrase safeguards on national interest that may be provided by law was subsequently replaced by reasonable conditions, as proposed by Commissioner Davide [vide V RECORD, CONSTITUTIONAL COMMISSION 30 (September 24, 1986)]. [130] In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331, the Court stated: x x x The duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency. (Underscoring supplied) [131] Valmonte v. Belmonte, Jr., supra note 119.

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MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms. MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a feedback, both ways. xxxx MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence? I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be another OMA in the making. 762[132] (Emphasis supplied) The imperative of a public consultation, as a species of the right to information, is evident in the marching orders to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.763[133] The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the peoples participation. One of the three underlying principles of the comprehensive peace process is that it should be community-based, reflecting the sentiments, values and principles important to all Filipinos and shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community.764[134] Included as a component of the comprehensive peace process is consensus-building and empowerment for peace, which includes continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of peoples participation in the peace process.765[135] Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate continuing consultations, contrary to respondents position that plebiscite is more than sufficient consultation.766[136]

762 763 764 765 766

[132] [133] [134] [135] [136]

V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986). Supra note 55. EXECUTIVE ORDER No. 3 (2001), Sec. 3 (a). EXECUTIVE ORDER No. 3 (2001), Sec. 4 (b). Respondents Memorandum of September 24, 2008, p. 44.

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Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to [c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process.767[137] E.O. No. 3 mandates the establishment of the NPF to be the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives.768[138] In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. ON THE SECOND SUBSTANTIVE ISSUE With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. The MOA-AD is inconsistent with the Constitution and laws as presently worded. In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government. 4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied)
767 768 [137] [138]

EXECUTIVE ORDER No. 3 (2001), Sec. 5 (b), par. 6. EXECUTIVE ORDER No. 3 (2001), Sec. 8, see also Sec. 10.

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The nature of the associative relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of association in international law, and the MOA-AD by its inclusion of international law instruments in its TOR placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term associative in the MOA-AD. For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,769[151] are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership. According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government. In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes. It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nations national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.770[152] In international practice, the associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.771[153]
769 [151]

770

771

The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall Islands, and the Northern Mariana Islands, which extend east of the Philippines and northeast of Indonesia in the North Pacific Ocean. (Ibid.) [152] H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A POLITICAL STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004). [153] Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1987).

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Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJEs capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJEs right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association recognized under the Constitution is not present

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-ADs provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X: 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. SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. The BJE is a far more powerful entity than the autonomous region recognized in the Constitution

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It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention,772[154] namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it which has betrayed itself by its use of the concept of association runs counter to the national sovereignty and territorial integrity of the Republic. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. Article X, Section 18 of the Constitution provides that [t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. (Emphasis supplied) As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term autonomous region in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE. The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution since that provision defines the powers of autonomous regions as follows: SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) (2) (3)
772 [154]

Administrative organization; Creation of sources of revenues; Ancestral domain and natural resources;

Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.

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(4) (5) (6) (7) (8) (9)

Personal, family, and property relations; Regional urban and rural planning development; Economic, social, and tourism development; Educational policies; Preservation and development of the cultural heritage; and Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x. Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary773[155] instructs: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied) Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity. Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law,
773 [155]

G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.

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among which are R.A. No. 9054774[156] or the Organic Act of the ARMM, and the IPRA.775[157] Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of Bangsamoro people used in the MOA-AD. Paragraph 1 on CONCEPTS AND PRINCIPLES states: 1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as Bangsamoros. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied) This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows: As used in this Organic Act, the phrase indigenous cultural community refers to Filipino citizens residing in the autonomous region who are: (a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and (b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions. Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-ADs manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject to the delimitations in the agreed Schedules, [t]he Bangsamoro homeland and historic territory refer to the land
774
[156]

775

AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED AN ACT PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AS AMENDED, March 31, 2001. [157] AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES, October 29, 1997.

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mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof: SECTION 52. Delineation Process. The identification and delineation of ancestral domains shall be done in accordance with the following procedures: xxxx b) Petition for Delineation. The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs; c) Delineation Proper. The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned; d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents: 1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs political structure and institution; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs; 5) Survey plans and sketch maps; 6) Anthropological data; 7) Genealogical surveys;

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8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Write-ups of names and places derived from the native dialect of the community. e) Preparation of Maps. On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f) Report of Investigation and Other Documents. A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP; g) Notice and Publication. A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available; h) Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below. The extent of the Presidents power to conduct peace negotiations.

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That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,776[168] in issue was the authority of the President to declare a state of rebellion an authority which is not expressly provided for in the Constitution. The Court held thus: In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's . . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-inchief clause, but not a diminution of the general grant of executive power. Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied) Similarly, the Presidents power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.777[169] In the Philippine experience, the link between peace agreements and constitutionmaking has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions778[172] is the framers intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
776 777 778 [168] [169] [172]

466 Phil. 482, 519-520 (2004). CONSTITUTION, Article VII, Sec. 18. CONSTITUTION, Article X, Sections 15-21.

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MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions. I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into something new? MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy.779 [173] (Emphasis supplied) The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities. The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention. While the President does not possess constituent powers as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. In Sanidad v. COMELEC,780[174] in issue was the legality of then President Marcos act of directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the
779 780 [173] [174]

III Record, Constitutional Commission, 180 (August 11, 1986). 165 Phil. 303 (1976).

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Presidents act, holding that the urges of absolute necessity compelled the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Courts concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not disputed by either side. Justice Teehankees dissent,781[175] in particular, bears noting. While he disagreed that the President may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the Presidents action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined: Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from the President or Prime Minister, it follows that the Presidents questioned decrees proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis.782[176] (Emphasis supplied) From the foregoing discussion, the principle may be inferred that the President in the course of conducting peace negotiations may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty. Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through initiative. These recommendations, however, may amount to nothing more than the Presidents suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine peoples initiative. The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:783[177] The Lambino Group claims that their initiative is the people's voice. However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP maintains its unqualified support to the agenda
781 782 [175] [176] [177]

783

Id. at 412. Id. at 413. G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.

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of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms. The Lambino Group thus admits that their people's initiative is an unqualified support to the agenda of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of people's voice or sovereign will in the present initiative. It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.
784[178]

The foregoing discussion focused on the Presidents authority to propose constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which for all intents and purposes is a proposal for new legislation coming from the President.785[179] SUMMARY The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-inintervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the moot and academic principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.
784 [178] [179]

785

CONSTITUTION, Art. VII, Sec. 5. Article VI, Section 25 (1) of the Constitution states as follows: The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

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The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The peoples right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same selfexecutory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the peoples right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOAAD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does

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not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. WHEREFORE, respondents motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the Ancestral Domain Aspect of the GRPMILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.

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