Вы находитесь на странице: 1из 169

G.R. No.

78059 August 31, 1987


ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal,
HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from
replacing them from their respective positions as Barangay Captain and Barangay Councilmen of
Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino,
Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of
1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December
1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987
designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay,
Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local
Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December
1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina,
Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same
Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor,
the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20,
1986;

That as being OIC Governor of the Province of Rizal and in the performance of my
duties thereof, I among others, have signed as I did sign the unnumbered
memorandum ordering the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following
day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null
and void and that respondents be prohibited from taking over their positions of Barangay Captain
and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall
commence on June 7, 1982 and shall continue until their successors shall have elected and shall
have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the authority to replace them and to designate
their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the
aforequoted provision and not because their term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years
must be deemed to have been repealed for being inconsistent with the aforequoted provision of the
Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective officials under
the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence
of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or

not the designation of respondents to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should
be considered as the effective date of replacement and not December 1,1986 to which it was ante
dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision
in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII
of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the
autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly,
the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which
the barangays form a part, 3 and limits the President's power to "general supervision" over local
governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office
of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years
for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be
considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations letters of
instructions, and other executive issuances not inconsistent, with this Constitution
shall remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ
of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over
of petitioners' positions subject of this Petition. Without costs.

SO ORDERED.

G.R. No. 92299

April 19, 1991

REYNALDO R. SAN JUAN, petitioner,


vs.
CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND MANAGEMENT and CECILIA
ALMAJOSE,respondents.
Legal Services Division for petitioner.
Sumulong, Sumulong, Paras & Abano Law Offices for private respondent.

GUTIERREZ, JR., J.:


In this petition for certiorari pursuant to Section 7, Article IX (A) of the present Constitution, the
petitioner Governor of the Province of Rizal, prays for the nullification of Resolution No. 89-868 of
the Civil Service Commission (CSC) dated November 21, 1989 and its Resolution No. 90-150 dated
February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the Commission resolved to dismiss, as it
hereby dismisses the appeal of Governor Reynaldo San Juan of Rizal. Accordingly, the
approved appointment of Ms. Cecilia Almajose as Provincial Budget Officer of Rizal, is
upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's position upholding the private respondent's
appointment by denying the petitioner's motion for reconsideration for lack of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer (PBO) for the province of Rizal was left
vacant by its former holder, a certain Henedima del Rosario.

In a letter dated April 18, 1988, the petitioner informed Director Reynaldo Abella of the Department of
Budget and Management (DBM) Region IV that Ms. Dalisay Santos assumed office as Acting PBO
since March 22, 1988 pursuant to a Memorandum issued by the petitioner who further requested
Director Abella to endorse the appointment of the said Ms. Dalisay Santos to the contested position
of PBO of Rizal. Ms. Dalisay Santos was then Municipal Budget Officer of Taytay, Rizal before she
discharged the functions of acting PBO.
In a Memorandum dated July 26, 1988 addressed to the DBM Secretary, then Director Abella of
Region IV recommended the appointment of the private respondent as PBO of Rizal on the basis of
a comparative study of all Municipal Budget Officers of the said province which included three
nominees of the petitioner. According to Abella, the private respondent was the most qualified since
she was the only Certified Public Accountant among the contenders.
On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the appointment papers of
the private respondent as PBO of Rizal upon the aforestated recommendation of Abella.
In a letter dated August 3, 1988 addressed to Secretary Carague, the petitioner reiterated his
request for the appointment of Dalisay Santos to the contested position unaware of the earlier
appointment made by Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the petitioner that Dalisay
Santos and his other recommendees did not meet the minimum requirements under Local Budget
Circular No. 31 for the position of a local budget officer. Director Galvez whether or not through
oversight further required the petitioner to submit at least three other qualified nominees who are
qualified for the position of PBO of Rizal for evaluation and processing.
On November 2, 1988, the petitioner after having been informed of the private respondent's
appointment wrote Secretary Carague protesting against the said appointment on the grounds that
Cabuquit as DBM Undersecretary is not legally authorized to appoint the PBO; that the private
respondent lacks the required three years work experience as provided in Local Budget Circular No.
31; and that under Executive Order No. 112, it is the Provincial Governor, not the Regional Director
or a Congressman, who has the power to recommend nominees for the position of PBO.
On January 9, 1989 respondent DBM, through its Director of the Bureau of Legal & Legislative
Affairs (BLLA) Virgilio A. Afurung, issued a Memorandum ruling that the petitioner's letter-protest is
not meritorious considering that public respondent DBM validly exercised its prerogative in filling-up
the contested position since none of the petitioner's nominees met the prescribed requirements.
On January 27, 1989, the petitioner moved for a reconsideration of the BLLA ruling.
On February 28, 1989, the DBM Secretary denied the petitioner's motion for reconsideration.
On March 27, 1989, the petitioner wrote public respondent CSC protesting against the appointment
of the private respondent and reiterating his position regarding the matter.
Subsequently, public respondent CSC issued the questioned resolutions which prompted the
petitioner to submit before us the following assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM ASSISTANT
SECRETARY CABUQUIT OF CECILIA ALMAJOSE AS PBO OF RIZAL.

B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE POSSESSES ALL THE
REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES ARE NOT
QUALIFIED TO THE SUBJECT POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION IN NOT ALLOWING
PETITIONER TO SUBMIT NEW NOMINEES WHO COULD MEET THE REQUIRED
QUALIFICATION (Petition, pp. 7-8,Rollo, pp. 15-16)
All the assigned errors relate to the issue of whether or not the private respondent is lawfully entitled
to discharge the functions of PBO of Rizal pursuant to the appointment made by public respondent
DBM's Undersecretary upon the recommendation of then Director Abella of DBM Region IV.
The petitioner's arguments rest on his contention that he has the sole right and privilege to
recommend the nominees to the position of PBO and that the appointee should come only from his
nominees. In support thereof, he invokes Section 1 of Executive Order No. 112 which provides that:
Sec. 1. All budget officers of provinces, cities and municipalities shall be appointed
henceforth by the Minister of Budget and Management upon recommendation of the local
chief executive concerned, subject to civil service law, rules and regulations, and they shall
be placed under the administrative control and technical supervision of the Ministry of
Budget and Management.
The petitioner maintains that the appointment of the private respondent to the contested position
was made in derogation of the provision so that both the public respondents committed grave abuse
of discretion in upholding Almajose's appointment.
There is no question that under Section 1 of Executive Order No. 112 the petitioner's power to
recommend is subject to the qualifications prescribed by existing laws for the position of PBO.
Consequently, in the event that the recommendations made by the petitioner fall short of the
required standards, the appointing authority, the Minister (now Secretary) of public respondent DBM
is expected to reject the same.
In the event that the Governor recommends an unqualified person, is the Department Head free to
appoint anyone he fancies ? This is the issue before us.
Before the promulgation of Executive Order No. 112 on December 24, 1986, Batas Pambansa Blg.
337, otherwise known as the Local Government Code vested upon the Governor, subject to civil
service rules and regulations, the power to appoint the PBO (Sec. 216, subparagraph (1), BP 337).
The Code further enumerated the qualifications for the position of PBO. Thus, Section 216,
subparagraph (2) of the same code states that:
(2) No person shall be appointed provincial budget officer unless he is a citizen of the
Philippines, of good moral character, a holder of a degree preferably in law, commerce,
public administration or any related course from a recognized college or university, a first
grade civil service eligibility or its equivalent, and has acquired at least five years experience
in budgeting or in any related field.
The petitioner contends that since the appointing authority with respect to the Provincial Budget
Officer of Rizal was vested in him before, then, the real intent behind Executive Order No. 112 in

empowering him to recommend nominees to the position of Provincial Budget Officer is to make his
recommendation part and parcel of the appointment process. He states that the phrase "upon
recommendation of the local chief executive concerned" must be given mandatory application in
consonance with the state policy of local autonomy as guaranteed by the 1987 Constitution under
Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further argues that his power to recommend cannot
validly be defeated by a mere administrative issuance of public respondent DBM reserving to itself
the right to fill-up any existing vacancy in case the petitioner's nominees do not meet the qualification
requirements as embodied in public respondent DBM's Local Budget Circular No. 31 dated February
9, 1988.
The questioned ruling is justified by the public respondent CSC as follows:
As required by said E.O. No. 112, the DBM Secretary may choose from among the
recommendees of the Provincial Governor who are thus qualified and eligible for
appointment to the position of the PBO of Rizal. Notwithstanding, the recommendation of the
local chief executive is merely directory and not a conditionsine qua non to the exercise by
the Secretary of DBM of his appointing prerogative. To rule otherwise would in effect give the
law or E.O. No. 112 a different interpretation or construction not intended therein, taking into
consideration that said officer has been nationalized and is directly under the control and
supervision of the DBM Secretary or through his duly authorized representative. It cannot be
gainsaid that said national officer has a similar role in the local government unit, only on
another area or concern, to that of a Commission on Audit resident auditor. Hence, to
preserve and maintain the independence of said officer from the local government unit, he
must be primarily the choice of the national appointing official, and the exercise thereof must
not be unduly hampered or interfered with, provided the appointee finally selected meets the
requirements for the position in accordance with prescribed Civil Service Law, Rules and
Regulations. In other words, the appointing official is not restricted or circumscribed to the list
submitted or recommended by the local chief executive in the final selection of an appointee
for the position. He may consider other nominees for the position vis a vis the nominees of
the local chief executive. (CSC Resolution No. 89-868, p. 2; Rollo, p. 31)
The issue before the Court is not limited to the validity of the appointment of one Provincial Budget
Officer. The tug of war between the Secretary of Budget and Management and the Governor of the
premier province of Rizal over a seemingly innocuous position involves the application of a most
important constitutional policy and principle, that of local autonomy. We have to obey the clear
mandate on local autonomy. Where a law is capable of two interpretations, one in favor of
centralized power in Malacaang and the other beneficial to local autonomy, the scales must be
weighed in favor of autonomy.
The exercise by local governments of meaningful power has been a national goal since the turn of
the century. And yet, inspite of constitutional provisions and, as in this case, legislation mandating
greater autonomy for local officials, national officers cannot seem to let go of centralized powers.
They deny or water down what little grants of autonomy have so far been given to municipal
corporations.
President McKinley's Instructions dated April 7, 1900 to the Second Philippine Commission ordered
the new Government "to devote their attention in the first instance to the establishment of municipal
governments in which natives of the Islands, both in the cities and rural communities, shall be
afforded the opportunity to manage their own local officers to the fullest extent of which they are
capable and subject to the least degree of supervision and control which a careful study of their
capacities and observation of the workings of native control show to be consistent with the
maintenance of law, order and loyalty.

In this initial organic act for the Philippines, the Commission which combined both executive and
legislative powers was directed to give top priority to making local autonomy effective.
The 1935 Constitution had no specific article on local autonomy. However, in distinguishing between
presidential control and supervision as follows:
The President shall have control of all the executive departments, bureaus, or offices,
exercise general supervision over all local governments as may be provided by law, and take
care that the laws be faithfully executed. (Sec. 11, Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over local governments to "general
supervision . . . as may be provided by law." The President controls the executive departments. He
has no such power over local governments. He has only supervision and that supervision is both
general and circumscribed by statute.
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:
. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice, now Chief Justice,
Concepcion as theponente, clarified matters. As was pointed out, the presidential
competence is not even supervision in general, but general supervision as may be provided
by law. He could not thus go beyond the applicable statutory provisions, which bind and
fetter his discretion on the matter. Moreover, as had been earlier ruled in an opinion penned
by Justice Padilla in Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by the present
Chief Justice in his opinion in the Hebron case, supervision goes no further than "overseeing
or the power or authority of an officer to see that subordinate officers perform their duties. If
the latter fail or neglect to fulfill them the former may take such action or step as prescribed
by law to make them perform their duties." (Ibid, pp. 147-148) Control, on the other hand,
"means the power of an officer to alter or modify or nullify or set aside what a subordinate
had done in the performance of their duties and to substitute the judgment of the former for
that of the latter." It would follow then, according to the present Chief Justice, to go back to
the Hebron opinion, that the President had to abide by the then provisions of the Revised
Administrative Code on suspension and removal of municipal officials, there being no power
of control that he could rightfully exercise, the law clearly specifying the procedure by which
such disciplinary action would be taken.
Pursuant to this principle under the 1935 Constitution, legislation implementing local autonomy was
enacted. In 1959, Republic Act No. 2264, "An Act Amending the Law Governing Local Governments
by Increasing Their Autonomy and Reorganizing Local Governments" was passed. It was followed in
1967 when Republic Act No. 5185, the Decentralization Law was enacted, giving "further
autonomous powers to local governments governments."
The provisions of the 1973 Constitution moved the country further, at least insofar as legal provisions
are concerned, towards greater autonomy. It provided under Article II as a basic principle of
government:
Sec. 10. The State shall guarantee and promote the autonomy of local government units,
especially the barangay to ensure their fullest development as self-reliant communities.
An entire article on Local Government was incorporated into the Constitution. It called for a local
government code defining more responsive and accountable local government structures. Any
creation, merger, abolition, or substantial boundary alteration cannot be done except in accordance

with the local government code and upon approval by a plebiscite. The power to create sources of
revenue and to levy taxes was specifically settled upon local governments.
The exercise of greater local autonomy is even more marked in the present Constitution.
Article II, Section 25 on State Policies provides:
Sec. 25. The State shall ensure the autonomy of local governments
The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in
greater detail the provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of
Article X provide:
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and
operation of the local units.
When the Civil Service Commission interpreted the recommending power of the Provincial Governor
as purely directory, it went against the letter and spirit of the constitutional provisions on local
autonomy. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the
right of local governments to develop self-reliance and resoluteness in the handling of their own
funds, the goal of meaningful local autonomy is frustrated and set back.
The right given by Local Budget Circular No. 31 which states:
Sec. 6.0 The DBM reserves the right to fill up any existing vacancy where none of the
nominees of the local chief executive meet the prescribed requirements.
is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified
recommendees nominated by the Governor. If none is qualified, he must return the list of nominees
to the Governor explaining why no one meets the legal requirements and ask for new
recommendees who have the necessary eligibilities and qualifications.
The PBO is expected to synchronize his work with DBM. More important, however, is the proper
administration of fiscal affairs at the local level. Provincial and municipal budgets are prepared at the
local level and after completion are forwarded to the national officials for review. They are prepared
by the local officials who must work within the constraints of those budgets. They are not formulated
in the inner sanctums of an all-knowing DBM and unilaterally imposed on local governments whether
or not they are relevant to local needs and resources. It is for this reason that there should be a
genuine interplay, a balancing of viewpoints, and a harmonization of proposals from both the local
and national officials. It is for this reason that the nomination and appointment process involves a
sharing of power between the two levels of government.
It may not be amiss to give by way of analogy the procedure followed in the appointments of
Justices and Judges. Under Article VIII of the Constitution, nominations for judicial positions are
1wphi1

made by the Judicial and Bar Council. The President makes the appointments from the list of
nominees submitted to her by the Council. She cannot apply the DBM procedure, reject all the
Council nominees, and appoint another person whom she feels is better qualified. There can be no
reservation of the right to fill up a position with a person of the appointing power's personal choice.
The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez
required the Provincial Governor to submit at least three other names of nominees better qualified
than his earlier recommendation. It was a meaningless exercise. The appointment of the private
respondent was formalized before the Governor was extended the courtesy of being informed that
his nominee had been rejected. The complete disregard of the local government's prerogative and
the smug belief that the DBM has absolute wisdom, authority, and discretion are manifest.
In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local
governments as institutions of democracy is measured by the degree of autonomy that they
enjoy. Citing Tocqueville, he stated that "local assemblies of citizens constitute the strength of free
nations. . . . A people may establish a system of free government but without the spirit of municipal
institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp.
705-706).
Our national officials should not only comply with the constitutional provisions on local autonomy but
should also appreciate the spirit of liberty upon which these provisions are based.
WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of the Civil Service
Commission are SET ASIDE. The appointment of respondent Cecilia Almajose is nullified. The
Department of Budget and Management is ordered to appoint the Provincial Budget Officer of Rizal
from among qualified nominees submitted by the Provincial Governor.
SO ORDERED.

G.R. No. 93252 August 5, 1991


RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.
G.R. No. 93746 August 5,1991
MARY ANN RIVERA ARTIEDA, petitioner,
vs.
HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government,
NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the Department of Local
Government and SALVADOR CABALUNA JR., respondents.
G.R. No. 95245 August 5,1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the
Secretary of the Department of Local Government, respondents.
Nicolas P. Sonalan for petitioner in 93252.
Romeo A. Gerochi for petitioner in 93746.
Eugenio Original for petitioner in 95245.

SARMIENTO, J.:p
The petitioners take common issue on the power of the President (acting through the Secretary of
Local Government), to suspend and/or remove local officials.

The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the
Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number,
filed against him by various city officials sometime in 1988, on various charges, among them, abuse
of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable
violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn
Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza,
Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and
Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of the
respondent Court of Appeals. 2 We quote:
xxx xxx xxx
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City
Health, Office of Iloilo City charged that due to political reasons, having supported
the rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an
excuse the exigency of the service and the interest of the public, pulled her out from
rightful office where her qualifications are best suited and assigned her to a work that
should be the function of a non-career service employee. To make matters worse, a
utility worker in the office of the Public Services, whose duties are alien to the
complainant's duties and functions, has been detailed to take her place. The
petitioner's act are pure harassments aimed at luring her away from her permanent
position or force her to resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her
to perform task not befitting her position as Assistant City Health Officer of Iloilo City;
that her office was padlocked without any explanation or justification; that her salary
was withheld without cause since April 1, 1988; that when she filed her vacation
leave, she was given the run-around treatment in the approval of her leave in
connivance with Dr. Rodolfo Villegas and that she was the object of a wellengineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo
Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City
and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and
Eduardo Pefia Pedondo are members of the Sangguniang Panglunsod of the City of
Iloilo. Their complaint arose out from the case where Councilor Larry Ong, whose
key to his office was unceremoniously and without previous notice, taken by
petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The
Vice-Mayor and the other complainants sympathized with him and decided to do the
same. However, the petitioner, together with its fully-armed security men, forcefully
drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's
actuations the following day in the radio station and decided to hold office at the
Freedom Grandstand at Iloilo City and there were so many people who gathered to

witness the incident. However, before the group could reach the area, the petitioner,
together with his security men, led the firemen using a firetruck in dozing water to the
people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed
by former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges
filed against him and no warrant of arrest was issued, Erbite was arrested and
detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was
allegedly mauled by other detainees thereby causing injuries He was released only
the following day. 3
The Mayor thereafter answered 4 and the cases were shortly set for hearing. The opinion of the Court of
Appeals also set forth the succeeding events:
xxx xxx xxx
The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June
20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo
City. Notices, through telegrams, were sent to the parties (Annex L) and the parties
received them, including the petitioner. The petitioner asked for a postponement
before the scheduled date of hearing and was represented by counsel, Atty. Samuel
Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had
to come all the way from Manila for the two-day hearings but was actually held only
on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City.
Again, the petitioner attempted to delay the proceedings and moved for a
postponement under the excuse that he had just hired his counsel. Nonetheless, the
hearing officers denied the motion to postpone, in view of the fact that the parties
were notified by telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.
Finding probable grounds and reasons, the respondent issued a preventive
suspension order on August 11, 1988 to last until October 11,1988 for a period of
sixty (60) days.
Then the next investigation was set on September 21, 1988 and the petitioner again
asked for a postponement to September 26,1988. On September 26, 1988, the
complainants and petitioner were present, together with their respective counsel. The
petitioner sought for a postponement which was denied. In these hearings which
were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299.
The investigation was continued regarding the Malabor case and the complainants
testified including their witnesses.

On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement
of the October 24, 1988 hearing to November 7 to 11, 1988 which was granted.
However, the motion for change of venue as denied due to lack of funds. At the
hearing on November 7, 1988, the parties and counsel were present. Petitioner
reiterated his motion to change venue and moved for postponement anew. The
counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the
hearing was indefinitely postponed. However, the parties failed to come to terms and
after the parties were notified of the hearing, the investigation was set to December
13 to 15, 1988.
The petitioner sought for another postponement on the ground that his witnesses
were sick or cannot attend the investigation due to lack of transportation. The motion
was denied and the petitioner was given up to December 14, 1988 to present his
evidence.
On December 14,1988, petitioner's counsel insisted on his motion for postponement
and the hearing officers gave petitioner up to December 15, 1988 to present his
evidence. On December 15, 1988, the petitioner failed to present evidence and the
cases were considered submitted for resolution.
In the meantime, a prima facie evidence was found to exist in the arbitrary detention
case filed by Pancho Erbite so the respondent ordered the petitioner's second
preventive suspension dated October 11, 1988 for another sixty (60) days. The
petitioner was able to obtain a restraining order and a writ of preliminary injunction in
the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension
was not enforced. 5
Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against
the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City,
where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP
No. 16417, an action for prohibition, in the respondent Court of Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively
suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating
meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced
CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is
one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417.
On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a
Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda,
who had been similary charged by the respondent Secretary, to this Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from
implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two
decisions.

In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of
January 15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in
hearing the ten cases against him, had denied him due process of law and that the respondent
Secretary had been "biased, prejudicial and hostile" towards him 7 arising from his (Mayor Ganzon's)
alleged refusal to join the Laban ng Demokratikong Pilipino party 8 and the running political rivalry they
maintained in the last congressional and local elections; 9 and his alleged refusal to operate a lottery in
Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension since it had come ninety
days prior to an election (the barangay elections of November 14, 1988), 11notwithstanding which, the
latter proceeded with the hearing and meted out two more suspension orders of the aforementioned
cases. 12 He likewise contends that he sought to bring the cases to Iloilo City (they were held in Manila) in
order to reduce the costs of proceeding, but the Secretary rejected his request. 13 He states that he asked
for postponement on "valid and justifiable" 14 grounds, among them, that he was suffering from a heart
ailment which required confinement; that his "vital" 15 witness was also hospitalized 16 but that the latter
unduly denied his request. 17
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local
Government is devoid, in any event, of any authority to suspend and remove local officials, an
argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what
manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims
that he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically
motivated are pure speculation and although the latter does not appear to have denied these
contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have
under less political circumstances, considering furthermore that "political feud" has often been a
good excuse in contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted
to seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although
the Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as
judicial admissions as he would have us accept them 18 for the same reasons above-stated and
furthermore, because his say so's were never corroborated by independent testimonies. As a responsible
public official, Secretary Santos, in pursuing an official function, is presumed to be performing his duties
regularly and in the absence of contrary evidence, no ill motive can be ascribed to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the
hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds
the question to be moot and academic since we have in fact restrained the Secretary from further
hearing the complaints against the petitioners. 19
As to his request, finally, for postponements, the Court is afraid that he has not given any compelling
reason why we should overturn the Court of Appeals, which found no convincing reason to overrule
Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the
part of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the
Secretary has been guilty of a grave abuse of discretion.

The Court can not say, under these circumstances, that Secretary Santos' actuations deprived
Mayor Ganzon of due process of law.
We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and/or remove local officials.
It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935
and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials.
According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local government
units and second, by deleting the phrase 21 as may be provided by law to strip the President of the power
of control over local governments. It is a view, so they contend, that finds support in the debates of the
Constitutional Commission. The provision in question reads as follows:
Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays shall ensure that the
acts of their component units are within the scope of their prescribed powers and
functions. 22
It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:
Sec. 10. The President shall have control of all the executive departments, bureaus,
or offices, exercise general supervision over all Local governments as may be
provided by law, and take care that the laws be faithfully executed. 23
The petitioners submit that the deletion (of "as may be provided by law") is significant, as their
argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may
provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of Local
Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local
Government Code, we quote:
Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the
Minister of local Government, or the sanggunian concerned, as the case may be,
shall require the respondent to submit his verified answer within seven days from
receipt of said complaint, and commence the hearing and investigation of the case
within ten days after receipt of such answer of the respondent. No investigation shall
be held within ninety days immediately prior to an election, and no preventive
suspension shall be imposed with the said period. If preventive suspension has been
imposed prior to the aforesaid period, the preventive suspension shall be lifted. 24
Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by
the Minister of Local Government if the respondent is a provincial or city official, by
the provincial governor if the respondent is an elective municipal official, or by the
city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the
act or acts complained of, when the evidence of culpability is strong, when the gravity
of the offense so warrants, or when the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. In all cases, preventive suspension shall not extend beyond sixty
days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However ' if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time of
suspension. 25
The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in
deleting the phrase "as may be provided by law" intend to divest the President of the power to
investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed
Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the
constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the constitutional
language, the charter did not intend to divest the legislature of its right or the President of her
prerogative as conferred by existing legislation to provide administrative sanctions against local
officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more
than to underscore local governments' autonomy from congress and to break Congress' "control"
over local government affairs. The Constitution did not, however, intend, for the sake of local
autonomy, to deprive the legislature of all authority over municipal corporations, in particular,
concerning discipline.
Autonomy does not, after all, contemplate making mini-states out of local government units, as in the
federal governments of the United States of America (or Brazil or Germany), although Jefferson is
said to have compared municipal corporations euphemistically to "small republics." 26 Autonomy, in
the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the
legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean
local government units from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject
to, among other things, the passage of a local government code, 27 a local tax law, 28 income
distribution legislation, 29 and a national representation law, 30 and measures 31 designed to realize
autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places the
local government under the general supervision of the Executive. It is noteworthy finally, that the Charter
allows Congress to include in the local government code provisions for removal of local officials, which
suggest that Congress may exercise removal powers, and as the existing Local Government Code has
done, delegate its exercise to the President. Thus:
Sec. 3. The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a

system of decentralization with effective mechanisms of recall, initiative, and


referendum, allocate among the different local government units their powers,
responsibilities and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units. 32
As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub
silencio, the objective of the framers to strengthen local autonomy by severing congressional control
of its affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The
Constitution did nothing more, however, and insofar as existing legislation authorizes the President
(through the Secretary of Local Government) to proceed against local officials administratively, the
Constitution contains no prohibition.
The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her control,
which allegedly embraces disciplinary authority. It is a mistaken impression because legally,
"supervision" is not incompatible with disciplinary authority as this Court has held, 34 thus:
xxx xxx xxx
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this
Court had occasion to discuss the scope and extent of the power of supervision by
the President over local government officials in contrast to the power of control given
to him over executive officials of our government wherein it was emphasized that the
two terms, control and supervision, are two different things which differ one from the
other in meaning and extent. Thus in that case the Court has made the following
digression: "In administration law supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them the former may take such action or step as prescribed by
law to make them perform their duties. Control, on the other hand, means the power
of an officer to alter or modify or nullify of set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former for
that of the latter." But from this pronouncement it cannot be reasonably inferred that
the power of supervision of the President over local government officials does not
include the power of investigation when in his opinion the good of the public service
so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35
xxx xxx xxx

"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for test of the latter." 36 "Supervision" on the other hand means "overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. 37 As we held, 38 however,
"investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The
impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v.
Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor

General. 42 In Lacson, this Court said that the President enjoyed no control powers but only supervision
"as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that
the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary
action against him, except on appeal from a decision of the corresponding provincial board." 44 However,
neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of
disciplinary authority because she did not exercise control powers, but because no law allowed her to
exercise disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend
municipal officers is without doubt not well taken. Removal and suspension of public
officers are always controlled by the particular law applicable and its proper
construction subject to constitutional limitations. 45
In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law,
the same must be deemed mandatory and adhered to strictly, in the absence of
express or clear provision to the contrary-which does not et with respect to municipal
officers ... 46
In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial supervision
over municipal officials in the provincial governor who is authorized to "receive and
investigate complaints made under oath against municipal officers for neglect of duty,
oppression, corruption or other form of maladministration of office, and conviction by
final judgment of any crime involving moral turpitude." And if the charges are serious,
"he shall submit written charges touching the matter to the provincial board,
furnishing a copy of such charges to the accused either personally or by registered
mail, and he may in such case suspend the officer (not being the municipal treasurer)
pending action by the board, if in his opinion the charge by one affecting the official
integrity of the officer in question." Section 86 of the Revised Administration Code
adds nothing to the power of supervision to be exercised by the Department Head
over the administration of ... municipalities ... . If it be construed that it does and such
additional power is the same authority as that vested in the Department Head by
section 79(c) of the Revised Administrative Code, then such additional power must
be deemed to have been abrogated by Section 110(l), Article VII of the
Constitution. 47
xxx xxx xxx
In Pelaez, we stated that the President can not impose disciplinary measures on local officials
except on appeal from the provincial board pursuant to the Administrative Code. 48
Thus, in those case that this Court denied the President the power (to suspend/remove) it was not
because we did not think that the President can not exercise it on account of his limited power, but

because the law lodged the power elsewhere. But in those cases ii which the law gave him the
power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him. 49
The Court does not believe that the petitioners can rightfully point to the debates of the
Constitutional Commission to defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would
exclude the power of removal from the President, 50Commissioner Blas Ople would not. 51
The Court is consequently reluctant to say that the new Constitution has repealed the Local
Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible
terms and one may stand with the other notwithstanding the stronger expression of local autonomy
under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg.
337 is still in force and effect. 52
As the Constitution itself declares, local autonomy means "a more responsive and accountable local
government structure instituted through a system of decentralization." 53 The Constitution as we
observed, does nothing more than to break up the monopoly of the national government over the affairs
of local governments and as put by political adherents, to "liberate the local governments from the
imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to user in a
regime of federalism. The Charter has not taken such a radical step. Local governments, under the
Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit
paradoxically, to enhance self- government.
As we observed in one case, 54 decentralization means devolution of national administration but not
power to the local levels. Thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government
delegates administrative powers to political subdivisions in order to broaden the base
of government power and in the process to make local governments "more
responsive and accountable," and "ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national
development and social progress." At the same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate on
national concerns. The President exercises "general supervision" over them, but only
to "ensure that local affairs are administered according to law." He has no control
over their acts in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political
power in the favor of local governments units declared to be autonomous, In that
case, the autonomous government is free to chart its own destiny and shape its
future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to "self-immolation," since in
that event, the autonomous government becomes accountable not to the central
authorities but to its constituency. 55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter.
What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing
ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in
the event that all ten cases yield prima facie findings. The Court is not of course tolerating
misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly
another question to make him serve 600 days of suspension, which is effectively, to suspend him out
of office. As we held: 56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act,
he would have been all this while in the full discharge of his functions as such
municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has
been unable to. it is a basic assumption of the electoral process implicit in the right of
suffrage that the people are entitled to the services of elective officials of their choice.
For misfeasance or malfeasance, any of them could, of course, be proceeded
against administratively or, as in this instance, criminally. In either case, Ms
culpability must be established. Moreover, if there be a criminal action, he is entitled
to the constitutional presumption of innocence. A preventive suspension may be
justified. Its continuance, however, for an unreasonable length of time raises a due
process question. For even if thereafter he were acquitted, in the meanwhile his right
to hold office had been nullified. Clearly, there would be in such a case an injustice
suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the
people of Lianga They were deprived of the services of the man they had elected to
serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had outrun the bounds of reason and
resulted in sheer oppression. A denial of due process is thus quite manifest. It is to
avoid such an unconstitutional application that the order of suspension should be
lifted. 57
The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and
so also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a
suspension, as we have held, 59 is simply "to prevent the accused from hampering the normal cause of
the investigation with his influence and authority over possible witnesses" 60 or to keep him off "the
records and other evidence. 61
It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local
official. Under the Local Government Code, it can not exceed sixty days, 62 which is to say that it need
not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it
ought to be lifted if prosecutors have achieved their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held
to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption
of innocence unless and until found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for
no more than sixty days. As we held, 63 a longer suspension is unjust and unreasonable, and we might
add, nothing less than tyranny.
As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor
Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to
make, to all intents and purposes, his suspension permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been
proven. Worse, any absolution will be for naught because needless to say, the length of his
suspension would have, by the time he is reinstated, wiped out his tenure considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that
justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive
suspensions when apparently, the respondent Secretary has had sufficient time to gather the
necessary evidence to build a case against the Mayor without suspending him a day longer. What is
intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor
piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could
have pursued a consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior from
exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that
power oppressively, and needless to say, with a grave abuse of discretion.
The Court is aware that only the third suspension is under questions, and that any talk of future
suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to
serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the
corner (which amounts to a violation of the Local Government Code which brings to light a pattern of
suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply
foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and
lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven
remaining charges are concerned, we are urging the Department of Local Government, upon the
finality of this Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual
remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are
precluding the Secretary from meting out further suspensions based on those remaining complaints,
notwithstanding findings of prima facie evidence.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of
power, in which local officials remain accountable to the central government in the manner the law
may provide;

2. The new Constitution does not prescribe federalism;


3. The change in constitutional language (with respect to the supervision clause) was meant but to
deny legislative control over local governments; it did not exempt the latter from legislative
regulations provided regulation is consistent with the fundamental premise of autonomy;
4. Since local governments remain accountable to the national authority, the latter may, by law, and
in the manner set forth therein, impose disciplinary action against local officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify
"control" (which the President does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no
longer be suspended for the offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to his fault,
neglect or request, (the time of the delay) shall not be counted in
computing the time of suspension. [Supra, sec. 63(3)]
b) that if during, or after the expiration of, his preventive suspension,
the petitioner commits another or other crimes and abuses for which
proper charges are filed against him by the aggrieved party or
parties, his previous suspension shall not be a bar to his being
preventively suspended again, if warranted under subpar. (2), Section
63 of the Local Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining
Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the
petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any
of the remaining administrative charges pending against him for acts committed prior to August 11,
1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending
against Mayor Ganzon.
The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.
SO ORDERED.

G.R. No. 91649

May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND


LORENZO SANCHEZ,petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is
allegedly contrary to morals, public policy and order, and because

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law.
It waived the Manila City government's right to impose taxes and license fees, which is
recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded
into the local government's right to impose local taxes and license fees. This, in
contravention of the constitutionally enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR
conducted gambling, while most other forms of gambling are outlawed, together with
prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away from monopolistic and crony
economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared
national policy of the "new restored democracy" and the people's will as expressed in the 1987
Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections
11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present
Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco
being also the Chairman of the Committee on Laws of the City Council of Manila), can question and
seek the annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D.
1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1,
1977 "to establish, operate and maintain gambling casinos on land or water within the territorial
jurisdiction of the Philippines." Its operation was originally conducted in the well known floating
casino "Philippine Tourist." The operation was considered a success for it proved to be a potential
source of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed
on June 2, 1978 for PAGCOR to fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government
to regulate and centralize all games of chance authorized by existing franchise or permitted by law,
under the following declared policy
Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to
centralize and integrate all games of chance not heretofore authorized by existing franchises
or permitted by law in order to attain the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games of
chance into one corporate entity to be controlled, administered and supervised by the
Government.
(b) To establish and operate clubs and casinos, for amusement and recreation, including
sports gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement
and recreation including games of chance, which may be allowed by law within the territorial
jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to
fund infrastructure and socio-civic projects, such as flood control programs, beautification,
sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs,

Population Control and such other essential public services; (2) create recreation and
integrated facilities which will expand and improve the country's existing tourist attractions;
and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are
normally prevalent on the conduct and operation of gambling clubs and casinos without
direct government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its
Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent
therewith, are accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of
Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and
directly remitted to the National Government a total of P2.5 Billion in form of franchise tax,
government's income share, the President's Social Fund and Host Cities' share. In addition,
PAGCOR sponsored other socio-cultural and charitable projects on its own or in cooperation with
various governmental agencies, and other private associations and organizations. In its 3 1/2 years
of operation under the present administration, PAGCOR remitted to the government a total of P6.2
Billion. As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9) casinos
nationwide, directly supporting the livelihood of Four Thousand Four Hundred Ninety-Four (4,494)
families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null
and void" for being "contrary to morals, public policy and public order," monopolistic and tends
toward "crony economy", and is violative of the equal protection clause and local autonomy as well
as for running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human
Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the
highest and most delicate function which belongs to the judicial department of the government."
(State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of
the government We need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of
its constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it
is clear that the legislature or the executive for that matter, has over-stepped the limits of its authority
under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on
the offending statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the
. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute, it
will be upheld and the challenger must negate all possible basis; that the courts are not
concerned with the wisdom, justice, policy or expediency of a statute and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be

adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660,
663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v.
Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA
220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory
Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal personality
of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with the Court's
duty, under the 1987 Constitution, to determine whether or not the other branches of government
have kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas
Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases before us,
We hold that the same is satisfied by the petitioners and intervenors because each of them
has sustained or is in danger of sustaining an immediate injury as a result of the acts or
measures complained of. And even if, strictly speaking they are not covered by the definition,
it is still within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that
"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." We have
since then applied the exception in many other cases. (Association of Small Landowners in
the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of
gambling does not mean that the Government cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-comprehensive
embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the
charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood
and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most
vital functions of governance. Marshall, to whom the expression has been credited, refers to it

succinctly as the plenary power of the state "to govern its citizens". (Tribe, American Constitutional
Law, 323, 1978). The police power of the State is a power co-extensive with self-protection and is
most aptly termed the "law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil.
660, 708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National,
40 Phil. 136) It is a dynamic force that enables the state to meet the agencies of the winds of
change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling
operations in one corporate entity the PAGCOR, was beneficial not just to the Government but to
society in general. It is a reliable source of much needed revenue for the cash strapped
Government. It provided funds for social impact projects and subjected gambling to "close scrutiny,
regulation, supervision and control of the Government" (4th Whereas Clause, PD 1869). With the
creation of PAGCOR and the direct intervention of the Government, the evil practices and
corruptions that go with gambling will be minimized if not totally eradicated. Public welfare, then, lies
at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose
taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local
autonomy. They must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as
the franchise holder from paying any "tax of any kind or form, income or otherwise, as well as fees,
charges or levies of whatever nature, whether National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or
otherwise as well as fees, charges or levies of whatever nature, whether National or Local,
shall be assessed and collected under this franchise from the Corporation; nor shall any form
or tax or charge attach in any way to the earnings of the Corporation, except a franchise tax
of five (5%) percent of the gross revenues or earnings derived by the Corporation from its
operations under this franchise. Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind,
nature or description, levied, established or collected by any municipal, provincial or national
government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes
(Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality
of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that
power or the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to
tax" therefore must always yield to a legislative act which is superior having been passed upon by
the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine
Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that
"municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January
18, 1957) which has the power to "create and abolish municipal corporations" due to its "general
legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541).
Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No.

9124, July 2, 1950). And if Congress can grant the City of Manila the power to tax certain matters, it
can also provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early
as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses
or permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government,
thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities
and other local governments to issue license, permit or other form of franchise to operate,
maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is
hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog
race tracks, jai-alai and other forms of gambling shall be issued by the national government
upon proper application and verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for the
operation of gambling. Necessarily, the power to demand or collect license fees which is a
consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR
is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of
stocks are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II,
PD 1869) it also exercises regulatory powers thus:
Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated
entities, and shall exercise all the powers, authority and the responsibilities vested in the
Securities and Exchange Commission over such affiliating entities mentioned under the
preceding section, including, but not limited to amendments of Articles of Incorporation and
By-Laws, changes in corporate term, structure, capitalization and other matters concerning
the operation of the affiliated entities, the provisions of the Corporation Code of the
Philippines to the contrary notwithstanding, except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the Government.
Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local
taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local
government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any
manner control the operation of constitutional laws enacted by Congress to carry into
execution the powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat
316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of
power on the part of the States to touch, in that way (taxation) at least, the instrumentalities
of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or
political subdivision can regulate a federal instrumentality in such a way as to prevent it from

consummating its federal responsibilities, or even to seriously burden it in the


accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis
supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool
for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v.
Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which
has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D.
1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of revenue
and to levy taxes, fees, and other charges subject to such guidelines and limitation as the
congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees
and charges shall accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed
or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to
the exercise of the power of local governments to impose taxes and fees. It cannot therefore be
violative but rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means
"decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as cited in
Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does
not make local governments sovereign within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs. In a unitary system of
government, such as the government under the Philippine Constitution, local governments
can only be an intra sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only mean a measure of
decentralization of the function of government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local government
units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens
Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State
concern and hence, it is the sole prerogative of the State to retain it or delegate it to local
governments.
As gambling is usually an offense against the State, legislative grant or express charter
power is generally necessary to empower the local corporation to deal with the subject. . . .
In the absence of express grant of power to enact, ordinance provisions on this subject
which are inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733
Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974,

22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis
supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution,
because "it legalized PAGCOR conducted gambling, while most gambling are outlawed together
with prostitution, drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the
well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not
have to operate in equal force on all persons or things to be conformable to Article III, Section 1 of
the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of
individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The
Constitution does not require situations which are different in fact or opinion to be treated in law as
though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection
is not clearly explained in the petition. The mere fact that some gambling activities like cockfighting
(P.D 449) horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA
1169 as amended by B.P. 42) are legalized under certain conditions, while others are prohibited,
does not render the applicable laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because
there are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA
827)
The equal protection clause of the 14th Amendment does not mean that all occupations
called by the same name must be treated the same way; the state may do what it can to
prevent which is deemed as evil and stop short of those cases in which harm to the few
concerned is not less than the harm to the public that would insure if the rule laid down were
made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away
from monopolies and crony economy and toward free enterprise and privatization" suffice it to state
that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the
government's policies then it is for the Executive Department to recommend to Congress its repeal
or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and
not what the law should be. Under our system of government, policy issues are within the
domain of the political branches of government and of the people themselves as the
repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
1wphi1

On the issue of "monopoly," however, the Constitution provides that:


Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National
Economy and Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Constitution. The state must still decide whether public interest demands that monopolies be
regulated or prohibited. Again, this is a matter of policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely
statements of principles and, policies. As such, they are basically not self-executing, meaning a law
should be passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
executive and the legislature. If the executive and the legislature failed to heed the directives
of the articles the available remedy was not judicial or political. The electorate could express
their displeasure with the failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387;
Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA
287). Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal
breach of the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for
nullity must be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition
this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such
a declaration. Otherwise, their petition must fail. Based on the grounds raised by petitioners to
challenge the constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome
the presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869
remains a wise legislation considering the issues of "morality, monopoly, trend to free enterprise,
privatization as well as the state principles on social justice, role of youth and educational values"
being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162
SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in
its favor the presumption of validity and constitutionality which petitioners Valmonte and the
KMU have not overturned. Petitioners have not undertaken to identify the provisions in the
Constitution which they claim to have been violated by that statute. This Court, however, is
not compelled to speculate and to imagine how the assailed legislation may possibly offend
some provision of the Constitution. The Court notes, further, in this respect that petitioners
have in the main put in question the wisdom, justice and expediency of the establishment of
the OPSF, issues which are not properly addressed to this Court and which this Court may
not constitutionally pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when
the gambling resorted to is excessive. This excessiveness necessarily depends not only on the
financial resources of the gambler and his family but also on his mental, social, and spiritual outlook
on life. However, the mere fact that some persons may have lost their material fortunes, mental
control, physical health, or even their lives does not necessarily mean that the same are directly
attributable to gambling. Gambling may have been the antecedent, but certainly not necessarily the
cause. For the same consequences could have been preceded by an overdose of food, drink,
exercise, work, and even sex.

WHEREFORE, the petition is DISMISSED for lack of merit.


SO ORDERED.

G.R. No. 111097 July 20, 1994


MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING
CORPORATION,respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.

CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro
City. Civic organizations angrily denounced the project. The religious elements echoed the objection
and so did the women's groups and the youth. Demonstrations were led by the mayor and the city

legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the
city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR
decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building
belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated
and equipped the same, and prepared to inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On
December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND
CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR
THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION
THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in
session assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation of casino
within its territorial jurisdiction, no business permit shall be issued to any person,
partnership or corporation for the operation of casino within the city limits.
Sec. 2. That it shall be a violation of existing business permit by any persons,
partnership or corporation to use its business establishment or portion thereof, or
allow the use thereof by others for casino operation and other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business permit as defined
in the preceding section shall suffer the following penalties, to wit:
a) Suspension of the business permit for sixty (60)
days for the first offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6)
months for the second offense, and a fine of
P3,000.00/day
c) Permanent revocation of the business permit and
imprisonment of One (1) year, for the third and
subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:

ORDINANCE NO. 3375-93


AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING
PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO
under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No.
2673, reiterating its policy against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353,
prohibiting the issuance of Business Permit and to cancel existing Business Permit to
any establishment for the using and allowing to be used its premises or portion
thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local
Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI
of the implementing rules of the Local Government Code, the City Council as the
Legislative Body shall enact measure to suppress any activity inimical to public
morals and general welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect social and moral
welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is
hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor,
partnership or corporation undertaking the operation, conduct, maintenance of
gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine
in the amount of P5,000.00 or both at the discretion of the court against the manager,
supervisor, and/or any person responsible in the establishment, conduct and
maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local
newspaper of general circulation.

Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as
intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of
Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the
Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro
does not have the power and authority to prohibit the establishment and operation of
a PAGCOR gambling casino within the City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in Sec. 458,
par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on
that point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting
and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the general
powers and purposes of the instrumentality concerned and inconsistent with the laws
or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v.
PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues
presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of the Philippines.
In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the
constitutionality of the decree and even cited the benefits of the entity to the national economy as the third
highest revenue-earner in the government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is expressly vested with the police power under
what is known as the General Welfare Clause now embodied in Section 16 as follows:
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.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang
Panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress
and impose appropriate penalties for habitual
drunkenness in public places, vagrancy, mendicancy,
prostitution, establishment and maintenance of
houses of ill repute,gambling and other prohibited
games of chance, fraudulent devices and ways to
obtain money or property, drug addiction,
maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of
obscene or pornographic materials or publications,
and such other activities inimical to the welfare and
morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within
their territorial limits in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit
the operation of casinos because they involve games of chance, which are detrimental to the people.
Gambling is not allowed by general law and even by the Constitution itself. The legislative power
conferred upon local government units may be exercised over all kinds of gambling and not only
over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may
have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to
prohibit them within its territory pursuant to the authority entrusted to it by the Local Government
Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in
Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein
seeking to strengthen the character of the nation. In giving the local government units the power to

prevent or suppress gambling and other social problems, the Local Government Code has
recognized the competence of such communities to determine and adopt the measures best
expected to promote the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to
prevent and suppress gambling and other prohibited games of chance, like craps, baccarat,
blackjack and roulette, it meant allforms of gambling without distinction. Ubi lex non distinguit, nec
nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power
casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that
it did not do so simply means that the local government units are permitted to prohibit all kinds of
gambling within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter
of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail
in case of inconsistencies between them. More than this, the powers of the PAGCOR under the
decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and
provisions, pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code
on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction
in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the
Code specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code,
the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted
in its favor, and in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally interpreted to give
more powers to local government units in accelerating economic development and
upgrading the quality of life for the people in the community; . . . (Emphasis
supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the
Constitution and several decisions of this Court expressive of the general and official disapprobation

of the vice. They invoke the State policies on the family and the proper upbringing of the youth and,
as might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They
also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating
PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the
Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress
to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit
gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its
own wisdom, which this Court has no authority to review, much less reverse. Well has it been said
that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the
political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes
are not addressed to the judiciary but may be resolved only by the legislative and executive departments,
to which the function belongs in our scheme of government. That function is exclusive. Whichever way
these branches decide, they are answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and
Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And
we shall do so only by the criteria laid down by law and not by our own convictions on the propriety
of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid,
an ordinance must conform to the following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local government units
are authorized to prevent or suppress, among others, "gambling and other prohibited games of
chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact

permitted by law. The petitioners are less than accurate in claiming that the Code could have
excluded such games of chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation
to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that
since the word "gambling" is associated with "and other prohibited games of chance," the word
should be read as referring to only illegal gambling which, like the other prohibited games of chance,
must be prevented or suppressed.
We could stop here as this interpretation should settle the problem quite conclusively. But we will
not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and
the earnestness of their advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public
policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it
to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this
misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance
admittedly cannot prevail against a statute. Their theory is that the change has been made by the
Local Government Code itself, which was also enacted by the national lawmaking authority. In their
view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the
sense that PAGCOR cannot now operate a casino over the objection of the local government unit
concerned. This modification of P.D. 1869 by the Local Government Code is permissible because
one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree has only
been "modifiedpro tanto," they are actually arguing that it is already dead, repealed and useless for
all intents and purposes because the Code has shorn PAGCOR of all power to centralize and
regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local
government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the
Code if the word "shall" as used therein is to be given its accepted meaning. Local government units
have now no choice but to prevent and suppress gambling, which in the petitioners' view includes
both legal and illegal gambling. Under this construction, PAGCOR will have no more games of
chance to regulate or centralize as they must all be prohibited by the local government units
pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot
continue to exist except only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently
discarding the rest of the provision which painstakingly mentions the specific laws or the parts
thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A
reading of the entire repealing clause, which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as
the "Local Government Code," Executive Order No. 112 (1987), and Executive Order
No. 319 (1988) are hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay are
hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital
fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special
Education Fund; Presidential Decree No. 144 as amended by Presidential Decree
Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree
No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos.
381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locallyfunded projects.
(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential
Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections
52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a
clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court
explained:
The cases relating to the subject of repeal by implication all proceed on the
assumption that if the act of later date clearly reveals an intention on the part of the
lawmaking power to abrogate the prior law, this intention must be given effect; but
there must always be a sufficient revelation of this intention, and it has become an
unbending rule of statutory construction that the intention to repeal a former law will
not be imputed to the Legislature when it appears that the two statutes, or provisions,
with reference to which the question arises bear to each other the relation of general
to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private
respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of
Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the
benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for
measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes.
This would show that the PAGCOR charter has not been repealed by the Local Government Code

but has in fact been improved as it were to make the entity more responsive to the fiscal problems of
the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably
destructive confrontation, courts must exert every effort to reconcile them, remembering that both
laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On
the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one
and annul the other but to give effect to both by harmonizing them if possible. This is possible in the
case before us. The proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent and suppress all kinds of
gambling within their territories except only those allowed by statutes like P.D. 1869. The exception
reserved in such laws must be read into the Code, to make both the Code and such laws equally
effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and
those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal
gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to
prohibit all kinds of gambling would erase the distinction between these two forms of gambling
without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City
of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from
conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro
Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion urged on us by
the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances
violate P.D. 1869, which has the character and force of a statute, as well as the public policy
expressed in the decree allowing the playing of certain games of chance despite the prohibition of
gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is obvious.
Municipal governments are only agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of Congress, from which they
have derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly
from the legislature. It breathes into them the breath of life, without which they cannot
exist. As it creates, so it may destroy. As it may destroy, it may abridge and control.
Unless there is some constitutional limitation on the right, the legislature might, by a
single act, and if we can suppose it capable of so great a folly and so great a wrong,
sweep from existence all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are, so to phrase it, the mere tenants at
will of the legislature. 11

This basic relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
Without meaning to detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than under our previous
Constitutions. The power to create still includes the power to destroy. The power to grant still
includes the power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to tax, 12which
cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the
principal of the local government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of their
constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by
the opening of the casino. We share the view that "the hope of large or easy gain, obtained without
special effort, turns the head of the workman" 13 and that "habitual gambling is a cause of laziness and
ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The
laws against gambling must be enforced to the limit." George Washington called gambling "the child of
avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of
the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D.
1869 and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court
only if it contravenes the Constitution as the touchstone of all official acts. We do not find such
contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance, including
casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D.
1869 has not been modified by the Local Government Code, which empowers the local government
units to prevent or suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be
amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for
the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all
their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy
announced therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of
Appeals is AFFIRMED, with costs against the petitioners. It is so ordered.
G.R. No. 89651 November 10, 1989
DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC
DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL, RASHID
SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of
Mindanao, petitioners,
vs.
COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT
SECRETARY OF BUDGET AND MANAGEMENT, respondents.

G.R. No. 89965 November 10, 1989


ATTY. ABDULLAH D. MAMA-O, petitioner,
vs.
HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and the
COMMISSION ON ELECTIONS, respondents.
Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651 and 89965.
Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.:
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in
Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No.
6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao."
These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections
(COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from
releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof,
unconstitutional .
After a consolidated comment was filed by Solicitor General for the respondents, which the Court
considered as the answer, the case was deemed submitted for decision, the issues having been
joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on
Respondents' Comment and to Open Oral Arguments," which the Court noted.
The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of
the following:
(a) that R.A. 6734, or parts thereof, violates the Constitution, and
(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.
The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of
the Philippines of the Philippines and Moro National Liberation Front with the Participation of the
Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General
of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he
establishment of Autonomy in the southern Philippines within the realm of the sovereignty and
territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces
comprising the "areas of autonomy." 2
In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy,
Article X, section 15 of the charter provides that "[t]here 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."
To effectuate this mandate, the Constitution further provides:
Sec. 16. The President shall exercise general supervision over autonomous regions
to ensure that the laws are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or
by law to the autonomous regions shall be vested in the National Government.
Sec. 18. The Congress shall enact an organic act for each autonomous region with
the assistance and participation of the regional consultative commission composed
of representatives appointed by the President from a list of nominees from
multisectoral bodies. The organic act shall define the basic structure of government
for the region consisting of the executive and representative of the constituent
political units. The organic acts shall likewise provide for special courts with personal,
family, and property law jurisdiction consistent with the provisions of this Constitution
and national laws.
The creation of the autonomous region shall be effective when approved by majority
of the votes cast by the constituent units in a plebiscite called for the purpose,
provided that only the provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region.
Sec. 19 The first Congress elected under this Constitution shall, within eighteen
months from the time of organization of both Houses, pass the organic acts for the
autonomous regions in Muslim Mindanao and the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development;

(7) Educational policies;


(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion
of the general welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions shall be the
responsibility of the local police agencies which shall be organized, maintained,
supervised, and utilized in accordance with applicable laws. The defense and
security of the region shall be the responsibility of the National Government.
Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1,
1989.
1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that
certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law
of the land, being a binding international agreement . The Solicitor General asserts that the Tripoli
Agreement is neither a binding treaty, not having been entered into by the Republic of the
Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987
Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli
Agreement and its binding effect on the Philippine Government whether under public international or
internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation
of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A.
No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the
provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of
enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli
Agreement is a binding treaty or international agreement, it would then constitute part of the law of
the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress
of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC
INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and
Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli
Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734
contravened the Constitution would result in the granting of the reliefs sought. 3
2. The Court shall therefore only pass upon the constitutional questions which have been raised by
petitioners.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in
Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous region
which make the creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares
that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of
provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with
Section 18, Article X of the Constitution." Petitioner contends that the tenor of the above provision
makes the creation of an autonomous region absolute, such that even if only two provinces vote in
favor of autonomy, an autonomous region would still be created composed of the two provinces
where the favorable votes were obtained.
The matter of the creation of the autonomous region and its composition needs to be clarified.
Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution
which sets forth the conditions necessary for the creation of the autonomous region. The reference
to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the
autonomous region shall take place only in accord with the constitutional requirements. Second,
there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which
incorporates substantially the same requirements embodied in the Constitution and fills in the
details, thus:
SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take
effect when approved by a majority of the votes cast by the constituent units provided
in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not
earlier than ninety (90) days or later than one hundred twenty (120) days after the
approval of this Act: Provided, That only the provinces and cities voting favorably in
such plebiscite shall be included in the Autonomous Region in Muslim Mindanao.
The provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain the existing administrative determination, merge
the existing regions.
Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take
effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and
only those provinces and cities where a majority vote in favor of the Organic Act shall be included in
the autonomous region. The provinces and cities wherein such a majority is not attained shall not be
included in the autonomous region. It may be that even if an autonomous region is created, not all of
the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734
shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734
will therefore be determinative of (1) whether there shall be an autonomous region in Muslim
Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall
compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].
As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made
effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite
called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority
means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units,
or a majority in each of the constituent units, or both?
We need not go beyond the Constitution to resolve this question.

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the
plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his
Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose ... Comparing this with the provision on the creation of the
autonomous region, which reads:
The creation of the autonomous region shall be effective when approved by majority
of the votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2].
it will readily be seen that the creation of the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the
proviso underscores this. for if the intention of the framers of the Constitution was to get the majority
of the totality of the votes cast, they could have simply adopted the same phraseology as that used
for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective
when approved by a majority of the votes cast in a plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple majority of votes approving the
organic Act in individual constituent units and not a double majority of the votes in all constituent
units put together, as well as in the individual constituent units.
More importantly, because of its categorical language, this is also the sense in which the vote
requirement in the plebiscite provided under Article X, section 18 must have been understood by the
people when they ratified the Constitution.
Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains
that only those areas which, to his view, share common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics should be properly
included within the coverage of the autonomous region. He insists that R.A. No. 6734 is
unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del
Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13)
provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and
cultural heritage and other relevant characteristics. By including areas which do not strictly share the
same characteristics. By including areas which do not strictly share the same characteristic as the
others, petitioner claims that Congress has expanded the scope of the autonomous region which the
constitution itself has prescribed to be limited.
Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress
shall determine which areas should constitute the autonomous region. Guided by these
constitutional criteria, the ascertainment by Congress of the areas that share common attributes is
within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have
to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of
governmental powers. [Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R.
No. L-20387, January 31, 1968, 22 SCRA 424].

After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner
Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao should
likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its
scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order
for the other non-Muslim areas denies said areas equal protection of the law, and therefore is
violative of the Constitution.
Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked.
Any determination by Congress of what areas in Mindanao should compromise the autonomous
region, taking into account shared historical and cultural heritage, economic and social structures,
and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As
earlier stated, such determination by Congress of which areas should be covered by the organic act
for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not
be inquired into by this Court.
Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963);
Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245,
January 22, 1980, 95 SCRA 392], the Court ruled that once class may be treated differently from
another where the groupings are based on reasonable and real distinctions. The guarantee of equal
protection is thus not infringed in this case, the classification having been made by Congress on the
basis of substantial distinctions as set forth by the Constitution itself.
Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the
constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a
provision in the Organic Act which mandates that should there be any conflict between the Muslim
Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the national law on
the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners
maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of divine law.
Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this
objection by enumerating possible instances of conflict between provisions of the Muslim Code and
national law, wherein an application of national law might be offensive to a Muslim's religious
convictions.
As enshrined in the Constitution, judicial power includes the duty to settle actual controversies
involving rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition
precedent for the power to be exercised, an actual controversy between litigants must first exist
[Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972,
43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no
conflicting claims involving the application of national law resulting in an alleged violation of religious
freedom. This being so, the Court in this case may not be called upon to resolve what is merely a
perceived potential conflict between the provisions the Muslim Code and national law.
Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among
others, states:

. . . Provided, That only the provinces and cities voting favorably in such plebiscite
shall be included in the Autonomous Region in Muslim Mindanao. The provinces and
cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain in the existing administrative regions:Provided, however, that the President
may, by administrative determination, merge the existing regions.
According to petitioners, said provision grants the President the power to merge regions, a power
which is not conferred by the Constitution upon the President. That the President may choose to
merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X,
Section 10 of the Constitution which 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 units directly affected.
It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative
regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of
contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was
made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions
are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see
Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has traditionally been lodged with the President
to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec.
4 of the Constitution]. There is no conflict between the power of the President to merge
administrative regions with the constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger expressly applies only to
provinces, cities, municipalities or barangays, not to administrative regions.
Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight
Committee to supervise the transfer to the autonomous region of the powers, appropriations, and
properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said
provisions mandate that the transfer of certain national government offices and their properties to the
regional government shall be made pursuant to a schedule prescribed by the Oversight Committee,
and that such transfer should be accomplished within six (6) years from the organization of the
regional government.
It is asserted by petitioners that such provisions are unconstitutional because while the Constitution
states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the
requirement of organizing an Oversight committee tasked with supervising the transfer of powers
and properties to the regional government would in effect delay the creation of the autonomous
region.
Under the Constitution, the creation of the autonomous region hinges only on the result of the
plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the

scheduled plebiscite, the creation of the autonomous region immediately takes effect delay the
creation of the autonomous region.
Under the constitution, the creation of the autonomous region hinges only on the result of the
plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region immediately takes effect. The
questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer
do not provide for a different date of effectivity. Much less would the organization of the Oversight
Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at
effecting a smooth transition period for the regional government. The constitutional objection on this
point thus cannot be sustained as there is no bases therefor.
Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387
(1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v.
Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who
petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis
for such a declaration. otherwise, their petition must fail. Based on the grounds raised by petitioners
to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to
overcome the presumption. The dismissal of these two petitions is, therefore, inevitable.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 96754 June 22, 1995


CONGRESSMAN JAMES L. CHIONGBIAN (Third District, South Cotobato) ADELBERT W.
ANTONINO (First District, South Cotobato), WILFREDO G. CAINGLET (Third District,
Zamboanga del Norte), HILARION RAMIRO, JR. (Second Division, Misamis Occidental),
ERNESTO S. AMATONG (Second District, Zamboanga del Norte), ALVIN G. DANS (Lone
District, Basilan), ABDULLAH M. DIMAPORO (Second District, Lanao del Norte), and
CONGRESSWOMAN MARIA CLARA A. LOBREGAT (Lone District, Zamboanga
City) petitioners,
vs.
HON. OSCAR M. ORBOS, Executive Secretary; COMMITTEE CHAIRMAN SEC. FIDEL V.
RAMOS, CABINET OFFICERS FOR REGIONAL DEVELOPMENT FOR REGIONS X AND XII,
CHAIRMAN OF THE REGIONAL DEVELOPMENT COUNCIL FOR REGION X, CHAIRMAN
JESUS V. AYALA, CABINET OFFICERS FOR REGIONAL DEVELOPMENT FOR REGIONS XI
and XII, DEPARTMENT OF LOCAL GOVERNMENT, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY SECRETARIAT, PRESIDENTIAL MANAGEMENT STAFF, HON.

GUILLERMO CARAGUE, Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT;


and HON. ROSALINA S. CAJUCUM, OIC National Treasurer, respondents.
IMMANUEL JALDON, petitioner,
vs.
HON. EXECUTIVE SECRETARY OSCAR M. ORBOS, HON. FIDEL RAMOS, HON. SECRETARY
LUIS SANTOS, AND HON. NATIONAL TREASURER ROSALINA CAJUCOM, respondents.

MENDOZA, J.:
These suits challenge the validity of a provision of the Organic Act for the Autonomous Region in
Muslim Mindanao (R.A. No. 6734), authorizing the President of the Philippines to "merge" by
administrative determination the regions remaining after the establishment of the Autonomous
Region, and the Executive Order issued by the President pursuant to such authority, "Providing for
the Reorganization of Administrative Regions in Mindanao." A temporary restraining order prayed for
by the petitioners was issued by this Court on January 29, 1991, enjoining the respondents from
enforcing the Executive Order and statute in question.
The facts are as follows:
Pursuant to Art. X, 18 of the 1987 Constitution, Congress passed R.A. No. 6734, the Organic Act
for the Autonomous Region in Muslim Mindanao, calling for a plebiscite to be held in the provinces of
Basilan, Cotobato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South
Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the
cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and
Zamboanga. In the ensuing plebiscite held on November 16, 1989, four provinces voted in favor of
creating an autonomous region. These are the provinces of Lanao del Sur, Maguindanao, Sulu and
Tawi-Tawi. In accordance with the constitutional provision, these provinces became the Autonomous
Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not voting in favor of the Autonomous
Region, Art. XIX, 13 of R.A. No. 6734 provides,
That only the provinces and cities voting favorably in such plebiscites shall be
included in the Autonomous Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain in the existing administrative regions. Provided, however, that the President
may, by administrative determination, merge the existing regions.
Pursuant to the authority granted by this provision, then President Corazon C. Aquino issued on
October 12, 1990 Executive Order No. 429, "providing for the Reorganization of the Administrative
Regions in Mindanao." Under this Order, as amended by E.O. No. 439
(1) Misamis Occidental, at present part of Region X, will become part of Region IX.

(2) Oroquieta City, Tangub City and Ozamiz City, at present parts of Region X will
become parts of Region IX.
(3) South Cotobato, at present a part of Region XI, will become part of Region XII.
(4) General Santos City, at present part of Region XI, will become part of Region XII.
(5) Lanao del Norte, at present part of Region XII, will become part of Region IX.
(6) Iligan City and Marawi City, at present part of Region XII, will become part of
Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their petition, members of
Congress representing various legislative districts in South Cotobato, Zamboanga del Norte,
Basilan, Lanao del Norte and Zamboanga City. On November 12, 1990, they wrote then President
Aquino protesting E.O. No. 429. They contended that
There is no law which authorizes the President to pick certain provinces and cities
within the existing regions some of which did not even take part in the plebiscite
as in the case of the province of Misamis Occidental and the cities of Oroquieta,
Tangub and Ozamiz and restructure them to new administrative regions. On the
other hand, the law (Sec. 13, Art. XIX, R.A. 6734) is specific to the point, that is, that
"the provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions."
The transfer of the provinces of Misamis Occidental from Region X to Region IX;
Lanao del Norte from Region XII to Region IX, and South Cotobato from Region XI to
Region XII are alterations of the existing structures of governmental units, in other
words, reorganization. This can be gleaned from Executive Order No. 429, thus
Whereas, there is an urgent need to reorganize the administrative
regions in Mindanao to guarantee the effective delivery of field
services of government agencies taking into consideration the
formation of the Autonomous Region in Muslim Mindanao.
With due respect to Her Excellency, we submit that while the authority necessarily
includes the authority to merge, the authority to merge does not include the authority
to reorganize. Therefore, the President's authority under RA 6734 to "merge existing
regions" cannot be construed to include the authority to reorganize them. To do so
will violate the rules of statutory construction.
The transfer of regional centers under Executive Order 429 is actually a restructuring
(reorganization) of administrative regions. While this reorganization, as in Executive
Order 429, does not affect the apportionment of congressional representatives, the
same is not valid under the penultimate paragraph of Sec. 13, Art. XIX of R.A. 6734
and Ordinance appended to the 1986 Constitution apportioning the seats of the

House of Representatives of Congress of the Philippines to the different legislative


districts in provinces and cities. 1
As their protest went unheeded, while Inauguration Ceremonies of the New Administrative Region IX
were scheduled on January 26, 1991, petitioners brought this suit for certiorari and prohibition.
On the other hand, the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of Zamboanga
City, who is suing in the capacity of taxpayer and citizen of the Republic of the Philippines.
Petitioners in both cases contend that Art. XIX, 13 of R.A. No. 6734 is unconstitutional because (1)
it unduly delegates legislative power to the President by authorizing him to "merge [by administrative
determination] the existing regions" or at any rate provides no standard for the exercise of the power
delegated and (2) the power granted is not expressed in the title of the law.
In addition, petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the ground that
the power granted by Art. XIX, 13 to the President is only to "merge regions IX and XII" but not to
reorganize the entire administrative regions in Mindanao and certainly not to transfer the regional
center of Region IX from Zamboanga City to Pagadian City.
The Solicitor General defends the reorganization of regions in Mindanao by E.O. No. 429 as merely
the exercise of a power "traditionally lodged in the President," as held in Abbas v. Comelec, 2 and as
a mere incident of his power of general supervision over local governments and control of executive
departments, bureaus and offices under Art. X, 16 and Art. VII, 17, respectively, of the Constitution.
He contends that there is no undue delegation of legislative power but only a grant of the power to
"fill up" or provide the details of legislation because Congress did not have the facility to provide for
them. He cites by analogy the case of Municipality of Cardona v. Municipality of Binangonan, 3 in
which the power of the Governor-General to fix municipal boundaries was sustained on the ground that
[such power] is simply a transference of certain details with respect to provinces,
municipalities, and townships, many of them newly created, and all of them subject to
a more or less rapid change both in development and centers of population, the
proper regulation of which might require not only prompt action but action of such a
detailed character as not to permit the legislative body, as such, to take it efficiently.
The Solicitor General justifies the grant to the President of the power "to merge the existing regions"
as something fairly embraced in the title of R.A. No. 6734, to wit, "An Act Providing for an Organic
Act for the Autonomous Region in Muslim Mindanao," because it is germane to it.
He argues that the power is not limited to the merger of those regions in which the provinces and
cities which took part in the plebiscite are located but that it extends to all regions in Mindanao as
necessitated by the establishment of the autonomous region.
Finally, he invokes P.D. No. 1416, as amended by P.D. No. 1772 which provides:

1. The President of the Philippines shall have the continuing authority to reorganize
the National Government. In exercising this authority, the President shall be guided
by generally acceptable principles of good government and responsive national
government, including but not limited to the following guidelines for a more efficient,
effective, economical and development-oriented governmental framework:
(a) More effective planning implementation, and review functions;
(b) Greater decentralization and responsiveness in decision-making
process;
(c) Further minimization, if not, elimination, of duplication or
overlapping of purposes, functions, activities, and programs;
(d) Further development of as standardized as possible ministerial,
sub-ministerial and corporate organizational structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and administrative
relationships among government entities.
For purposes of this Decree, the coverage of the continuing authority
of the President to reorganize shall be interpreted to encompass all
agencies, entities, instrumentalities, and units of the National
Government, including all government owned or controlled
corporations as well as the entire range of the powers, functions,
authorities, administrative relationships, acid related aspects
pertaining to these agencies, entities, instrumentalities, and units.
2. [T]he President may, at his discretion, take the following actions:
xxx xxx xxx
f. Create, abolish, group, consolidate, merge, or integrate entities,
agencies, instrumentalities, and units of the National Government, as
well as expand, amend, change, or otherwise modify their powers,
functions and authorities, including, with respect to governmentowned or controlled corporations, their corporate life, capitalization,
and other relevant aspects of their charters.
g. Take such other related actions as may be necessary to carry out
the purposes and objectives of this Decree.
Considering the arguments of the parties, the issues are:

(1) whether the power to "merge" administrative regions is legislative in character, as petitioners
contend, or whether it is executive in character, as respondents claim it is, and, in any event,
whether Art. XIX, 13 is invalid because it contains no standard to guide the President's discretion;
(2) whether the power given is fairly expressed in the title of the statute; and
(3) whether the power granted authorizes the reorganization even of regions the provinces and cities
in which either did not take part in the plebiscite on the creation of the Autonomous Region or did not
vote in favor of it; and
(4) whether the power granted to the President includes the power to transfer the regional center of
Region IX from Zamboanga City to Pagadian City.
It will be useful to recall first the nature of administrative regions and the basis and purpose for their
creation. On September 9, 1968, R.A. No. 5435 was passed "authorizing the President of the
Philippines, with the help of a Commission on Reorganization, to reorganize the different executive
departments, bureaus, offices, agencies and instrumentalities of the government, including banking
or financial institutions and corporations owned or controlled by it." The purpose was to promote
"simplicity, economy and efficiency in the government." 4 The Commission on Reorganization created
under the law was required to submit an integrated reorganization plan not later than December 31, 1969
to the President who was in turn required to submit the plan to Congress within forty days after the
opening of its next regular session. The law provided that any reorganization plan submitted would
become effective only upon the approval of Congress. 5
Accordingly, the Reorganization Commission prepared an Integrated Reorganization Plan which
divided the country into eleven administrative regions. 6 By P.D. No. 1, the Plan was approved and
made part of the law of the land on September 24, 1972. P.D. No. 1 was twice amended in 1975, first by
P.D. No. 742 which "restructur[ed] the regional organization of Mindanao, Basilan, Sulu and Tawi-Tawi"
and later by P.D. No. 773 which further "restructur[ed] the regional organization of Mindanao and divid[ed]
Region IX into two sub-regions." In 1978, P.D. No. 1555 transferred the regional center of Region IX from
Jolo to Zamboanga City.
Thus the creation and subsequent reorganization of administrative regions have been by the
President pursuant to authority granted to him by law. In conferring on the President the power "to
merge [by administrative determination] the existing regions" following the establishment of the
Autonomous Region in Muslim Mindanao, Congress merely followed the pattern set in previous
legislation dating back to the initial organization of administrative regions in 1972. The choice of the
President as delegate is logical because the division of the country into regions is intended to
facilitate not only the administration of local governments but also the direction of executive
departments which the law requires should have regional offices. As this Court observed in Abbas,
"while the power to merge administrative regions is not expressly provided for in the Constitution, it
is a power which has traditionally been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [see Art. X, 4 of the Constitution]." The
regions themselves are not territorial and political divisions like provinces, cities, municipalities and
barangays but are "mere groupings of contiguous provinces for administrative purposes." 7 The power
conferred on the President is similar to the power to adjust municipal boundaries 8which has been
described in Pelaez v. Auditor General 9 or as "administrative in nature."

There is, therefore, no abdication by Congress of its legislative power in conferring on the President
the power to merge administrative regions. The question is whether Congress has provided a
sufficient standard by which the President is to be guided in the exercise of the power granted and
whether in any event the grant of power to him is included in the subject expressed in the title of the
law.
First, the question of standard. A legislative standard need not be expressed. It may simply be
gathered or implied. 10 Nor need it be found in the law challenged because it may be embodied in other
statutes on the same subject as that of the challenged legislation. 11
With respect to the power to merge existing administrative regions, the standard is to be found in the
same policy underlying the grant to the President in R.A. No. 5435 of the power to reorganize the
Executive Department, to wit: "to promote simplicity, economy and efficiency in the government to
enable it to pursue programs consistent with national goals for accelerated social and economic
development and to improve the service in the transaction of the public business." 12 Indeed, as the
original eleven administrative regions were established in accordance with this policy, it is logical to
suppose that in authorizing the President to "merge [by administrative determination] the existing regions"
in view of the withdrawal from some of those regions of the provinces now constituting the Autonomous
Region, the purpose of Congress was to reconstitute the original basis for the organization of
administrative regions.
Nor is Art. XIX, 13 susceptible to charge that its subject is not embraced in the title of R.A. No.
6734. The constitutional requirement that "every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof" 13 has always been given a practical rather than a
technical construction. The title is not required to be an index of the content of the bill. It is a sufficient
compliance with the constitutional requirement if the title expresses the general subject and all provisions
of the statute are germane to that subject. 14 Certainly the reorganization of the remaining administrative
regions is germane to the general subject of R.A. No. 6734, which is the establishment of the
Autonomous Region in Muslim Mindanao.
Finally, it is contended that the power granted to the President is limited to the reorganization of
administrative regions in which some of the provinces and cities which voted in favor of regional
autonomy are found, because Art. XIX, 13 provides that those which did not vote for autonomy
"shall remain in the existing administrative regions." More specifically, petitioner in G.R. No. 96673
claims:
The questioned Executive Order No. 429 distorted and, in fact, contravened the clear
intent of this provision by moving out or transferring certain political subdivisions
(provinces/cities) out of their legally designated regions. Aggravating this
unacceptable or untenable situation is EO No. 429's effecting certain movements on
areas which did not even participate in the November 19, 1989 plebiscite. The
unauthorized action of the President, as effected by and under the questioned EO
No. 429, is shown by the following dispositions: (1) Misamis Occidental, formerly of
Region X and which did not even participate in the plebiscite, was moved from said
Region X to Region IX; (2) the cities of Ozamis, Oroquieta, and Tangub, all formerly
belonging to Region X, which likewise did not participate in the said plebiscite, were
transferred to Region IX; (3) South Cotobato, from Region XI to Region XII; (4)

General Santos City: from Region XI to Region XII; (5) Lanao del Norte, from Region
XII to Region IX; and (6) the cities of Marawi and Iligan from Region XII to Region IX.
All of the said provinces and cities voted "NO", and thereby rejected their entry into
the Autonomous Region in Muslim Mindanao, as provided under RA No. 6734. 15
The contention has no merit. While Art. XIX, 13 provides that "The provinces and cities which do
not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions,"
this provision is subject to the qualification that "the President may by administrative determination
merge the existing regions." This means that while non-assenting provinces and cities are to remain
in the regions as designated upon the creation of the Autonomous Region, they may nevertheless be
regrouped with contiguous provinces forming other regions as the exigency of administration may
require.
The regrouping is done only on paper. It involves no more than are definition or redrawing of the
lines separating administrative regions for the purpose of facilitating the administrative supervision of
local government units by the President and insuring the efficient delivery of essential services.
There will be no "transfer" of local governments from one region to another except as they may thus
be regrouped so that a province like Lanao del Norte, which is at present part of Region XII, will
become part of Region IX.
The regrouping of contiguous provinces is not even analogous to a redistricting or to the division or
merger of local governments, which all have political consequences on the right of people residing in
those political units to vote and to be voted for. It cannot be overemphasized that administrative
regions are mere groupings of contiguous provinces for administrative purposes, not for political
representation.
Petitioners nonetheless insist that only those regions, in which the provinces and cities which voted
for inclusion in the Autonomous Region are located, can be "merged" by the President.
To be fundamental reason Art. XIX, 13 is not so limited. But the more fundamental reason is that
the President's power cannot be so limited without neglecting the necessities of administration. It is
noteworthy that the petitioners do not claim that the reorganization of the regions in E.O. No. 429 is
irrational. The fact is that, as they themselves admit, the reorganization of administrative regions in
E.O. No. 429 is based on relevant criteria, to wit: (1) contiguity and geographical features; (2)
transportation and communication facilities; (3) cultural and language groupings; (4) land area and
population; (5) existing regional centers adopted by several agencies; (6) socio-economic
development programs in the regions and (7) number of provinces and cities.
What has been said above applies to the change of the regional center from Zamboanga City to
Pagadian City. Petitioners contend that the determination of provincial capitals has always been by
act of Congress. But as, this Court said in Abbas, 16 administrative regions are mere "groupings of
contiguous provinces for administrative purposes, . . . [They] are not territorial and political subdivisions
like provinces, cities, municipalities and barangays." There is, therefore, no basis for contending that only
Congress can change or determine regional centers. To the contrary, the examples of P.D. Nos. 1, 742,
773 and 1555 suggest that the power to reorganize administrative regions carries with it the power to
determine the regional center.

It may be that the transfer of the regional center in Region IX from Zamboanga City to Pagadian City
may entail the expenditure of large sums of money for the construction of buildings and other
infrastructure to house regional offices. That contention is addressed to the wisdom of the transfer
rather than to its legality and it is settled that courts are not the arbiters of the wisdom or expediency
of legislation. In any event this is a question that we will consider only if fully briefed and upon a
more adequate record than that presented by petitioners.
WHEREFORE, the petitions for certiorari and prohibition are DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 79956 January 29, 1990


CORDILLERA BROAD COALITION, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
G.R. No. 82217 January 29, 1990
LILIA YARANON and BONA BAUTISTA, assisted by their spouses, BRAULIO D. YARANON
and DEMETRIO D. BAUTISTA, JR., respectively; JAMES BRETT and SINAI C. HAMADA,
petitioners,
vs.
THE COMMISSION ON AUDIT, HON. CATALINO MACARAIG, Executive Secretary, HON.
VICENTE JAYME, Secretary of Finance, HON. GUILLERMO N. CARAGUE, Secretary of Budget
and Management, and HON. ROSALINA S. CAJUCOM, OIC National Treasurer, respondents.

CORTES, J.:
In these consolidated petitions, the constitutionality of Executive Order No. 220, dated July
15, 1987, which created the (Cordillera Administrative Region, is assailed on the primary
ground that it pre-empts the enactment of an organic act by the Congress and the creation of'
the autonomous region in the Cordilleras conditional on the approval of the act through a
plebiscite.

Relative to the creation of autonomous regions, the constitution, in Article X, provides:


AUTONOMOUS REGIONS
Sec. 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.
SEC. 16. The President shall exercise general supervision over autonomous
regions to ensure that laws are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted Constitution or
by law to the autonomous regions shall be vested in the National Government.
Sec. 18. The Congress shall enact an organic act for each autonomous region
with the assistance and participation of the regional consultative commission
composed of representatives appointed by the President from a list of
nominees from multi-sectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive department
and legislative assembly, both of which shall be elective and representative of
the constituent political units. The organic acts shall likewise provide for
special courts with personal, family and property law jurisdiction consistent
with the provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by
majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.
Sec. 19. The first Congress elected under this Constitution shall, within
eighteen months from the time of organization of both Houses, pass the
organic acts for the autonomous regions in Muslim Mindanao and the
Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall
provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;

(4) Personal, family and property relations;


(5) Regional urban and rural planning development;
(6) Economic, social and tourism development ;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions shall be the
responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws. The
defense and security of the regions shall be the responsibility of the National
Government.
A study of E.O. No. 220 would be incomplete Without reference to its historical background.
In April 1986, just after the EDSA Revolution, Fr. Conrado M. Balweg, S.V.D.,
broke off on ideological grounds from the Communist Party of the Philippines
(CPP) and its military arm the New People's Army. (NPA).
After President Aquino was installed into office by People Power, she
advocated a policy of national reconciliation. She called on all revolutionary
forces to a peace dialogue. The CPLA heeded this call of the President. After
the preliminary negotiations, President Aquino and some members of her
Cabinet flew to Mt. Data in the Mountain Province on September 13, 1986 and
signed with Fr. Conrado M. Balweg (As Commander of the CPLA and Ama
Mario Yag-ao (as President of Cordillera Bodong Administration, the civil
government of the CPLA a ceasefire agreement that signified the cessation of
hostilities (WHEREAS No. 7, E.O. 220).
The parties arrived at an agreement in principle: the Cordillera people shall not
undertake their demands through armed and violent struggle but by peaceful
means, such as political negotiations. The negotiations shall be a continuing
process until the demands of the Cordillera people shall have been
substantially granted.
On March 27, 1987, Ambassador Pelaez [Acting as Chief Negotiator of the
government], in pursuance of the September 13, 1986 agreement, flew to the
Mansion House, Baguio City, and signed with Fr. Balweg (as Chairman of the
Cordillera panel) a joint agreement, paragraphs 2 and 3 of which state:

Par. 2- Work together in drafting an Executive Order to create a preparatory


body that could perform policy-making and administrative functions and
undertake consultations and studies leading to a draft organic act for the
Cordilleras.
Par. 3- Have representatives from the Cordillera panel join the study group of
the R.P. Panel in drafting the Executive Order.
Pursuant to the above joint agreement, E.O. 220 was drafted by a panel of the
Philippine government and of the representatives of the Cordillera people.
On July 15, 1987, President Corazon C. Aquino signed the joint draft into law,
known now as E.O. 220. [Rejoinder G.R. No. 82217, pp. 2-3].
Executive Order No. 220, issued by the President in the exercise of her legislative powers
under Art. XVIII, sec. 6 of the 1987 Constitution, created the Cordillera Administrative Region
(CAR) , which covers the provinces of Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain
Province and the City of Baguio [secs. 1 and 2]. It was created to accelerate economic and
social growth in the region and to prepare for the establishment of the autonomous region in
the Cordilleras [sec. 3]. Its main function is to coordinate the planning and implementation of
programs and services in the region, particularly, to coordinate with the local government
units as well as with the executive departments of the National Government in the
supervision of field offices and in identifying, planning, monitoring, and accepting projects
and activities in the region [sec. 5]. It shall also monitor the implementation of all ongoing
national and local government projects in the region [sec. 20]. The CAR shall have a
Cordillera Regional Assembly as a policy-formulating body and a Cordillera Executive Board
as an implementing arm [secs. 7, 8 and 10]. The CAR and the Assembly and Executive Board
shall exist until such time as the autonomous regional government is established and
organized [sec. 17].
Explaining the rationale for the issuance of E.O. No. 220, its last "Whereas" clause provides:
WHEREAS, pending the convening of the first Congress and the enactment of
the organic act for a Cordillera autonomous region, there is an urgent need, in
the interest of national security and public order, for the President to
reorganize immediately the existing administrative structure in the Cordilleras
to suit it to the existing political realities therein and the Government's
legitimate concerns in the areas, without attempting to pre-empt the
constitutional duty of the first Congress to undertake the creation of an
autonomous region on a permanent basis.
During the pendency of this case, Republic Act No. 6766 entitled "An Act Providing for an
Organic Act for the Cordillera Autonomous Region," was enacted and signed into law. The
Act recognizes the CAR and the offices and agencies created under E.O. No. 220 and its
transitory nature is reinforced in Art. XXI of R.A. No. 6766, to wit:

SEC. 3. The Cordillera Executive Board, the Cordillera Region Assembly as


well as all offices and agencies created under Execute Order No. 220 shall
cease to exist immediately upon the ratification of this Organic Act.
All funds, properties and assets of the Cordillera Executive Board and the
Cordillera Regional Assembly shall automatically be transferred to the
Cordillera Autonomous Government.
I
It is well-settled in our jurisprudence that respect for the inherent and stated powers and
prerogatives of the law-making body, as well as faithful adherence to the principle of
separation of powers, require that its enactment be accorded the presumption of
constitutionality. Thus, in any challenge to the constitutionality of a statute, the burden of
clearly and unequivocally proving its unconstitutionality always rests upon the challenger.
Conversely, failure to so prove will necessarily defeat the challenge.
We shall be guided by these principles in considering these consolidated petitions.
In these cases, petitioners principally argue that by issuing E.O. No. 220 the President, in the
exercise of her legislative powers prior to the convening of the first Congress under the 1987
Constitution, has virtually pre-empted Congress from its mandated task of enacting an
organic act and created an autonomous region in the Cordilleras. We have carefully studied
the Constitution and E.O. No. 220 and we have come to the conclusion that petitioners'
assertions are unfounded. Events subsequent to the issuance of E.O. No. 220 also bear out
this conclusion.
1. A reading of E.O. No. 220 will easily reveal that what it actually envisions is the
consolidation and coordination of the delivery of services of line departments and agencies
of the National Government in the areas covered by the administrative region as a step
preparatory to the grant of autonomy to the Cordilleras. It does not create the autonomous
region contemplated in the Constitution. It merely provides for transitory measures in
anticipation of the enactment of an organic act and the creation of an autonomous region. In
short, it prepares the ground for autonomy. This does not necessarily conflict with the
provisions of the Constitution on autonomous regions, as we shall show later.
The Constitution outlines a complex procedure for the creation of an autonomous region in
the Cordilleras. A regional consultative commission shall first be created. The President shall
then appoint the members of a regional consultative commission from a list of nominees
from multi-sectoral bodies. The commission shall assist the Congress in preparing the
organic act for the autonomous region. The organic act shall be passed by the first Congress
under the 1987 Constitution within eighteen months from the time of its organization and
enacted into law. Thereafter there shall be held a plebiscite for the approval of the organic act
[Art. X, sec. 18]. Only then, after its approval in the plebiscite, shall the autonomous region be
created.

Undoubtedly, all of these will take time. The President, in 1987 still exercising legislative
powers, as the first Congress had not yet convened, saw it fit to provide for some measures
to address the urgent needs of the Cordilleras in the meantime that the organic act had not
yet been passed and the autonomous region created. These measures we find in E.O. No.
220. The steps taken by the President are obviously perceived by petitioners, particularly
petitioner Yaranon who views E.O. No. 220 as capitulation to the Cordillera People's
Liberation Army (CPLA) of Balweg, as unsound, but the Court cannot inquire into the wisdom
of the measures taken by the President, We can only inquire into whether or not the
measures violate the Constitution. But as we have seen earlier, they do not.
2. Moreover, the transitory nature of the CAR does not necessarily mean that it is, as
petitioner Cordillera Broad Coalition asserts, "the interim autonomous region in the
Cordilleras" [Petition, G.R. No. 79956, p. 25].
The Constitution provides for a basic structure of government in the autonomous region
composed of an elective executive and legislature and special courts with personal, family
and property law jurisdiction [Art. X, sec. 18]. Using this as a guide, we find that E.O. No. 220
did not establish an autonomous regional government. It created a region, covering a
specified area, for administrative purposes with the main objective of coordinating the
planning and implementation of programs and services [secs. 2 and 5]. To determine policy, it
created a representative assembly, to convene yearly only for a five-day regular session,
tasked with, among others, identifying priority projects and development programs [sec. 9].
To serve as an implementing body, it created the Cordillera Executive Board composed of the
Mayor of Baguio City, provincial governors and representatives of the Cordillera Bodong
Administration, ethno-linguistic groups and non-governmental organizations as regular
members and all regional directors of the line departments of the National Government as exofficiomembers and headed by an Executive Director [secs. 10 and 11]. The bodies created by
E.O. No. 220 do not supplant the existing local governmental structure, nor are they
autonomous government agencies. They merely constitute the mechanism for an "umbrella"
that brings together the existing local governments, the agencies of the National
Government, the ethno-linguistic groups or tribes, and non-governmental organizations in a
concerted effort to spur development in the Cordilleras.
The creation of the CAR for purposes of administrative coordination is underscored by the
mandate of E.O. No. 220 for the President and appropriate national departments and agencies
to make available sources of funds for priority development programs and projects
recommended by the CAR [sec. 21] and the power given to the President to call upon the
appropriate executive departments and agencies of the National Government to assist the
CAR [sec. 24].
3. Subsequent to the issuance of E.O. No. 220, the Congress, after it was convened, enacted
Republic Act No. 6658 which created the Cordillera Regional Consultative Commission. The
President then appointed its members. The commission prepared a draft organic act which
became the basis for the deliberations of the Senate and the House of Representatives. The
result was Republic Act No. 6766, the organic act for the Cordillera autonomous region,

which was signed into law on October 23, 1989. A plebiscite for the approval of the organic
act, to be conducted shortly, shall complete the process outlined in the Constitution.
In the meantime, E.O. No. 220 had been in force and effect for more than two years and we
find that, despite E.O. No. 220, the autonomous region in the Cordilleras is still to be created,
showing the lack of basis of petitioners' assertion. Events have shown that petitioners' fear
that E.O. No. 220 was a "shortcut" for the creation of the autonomous region in the
Cordilleras was totally unfounded.
Clearly, petitioners' principal challenge has failed.
II
A collateral issue raised by petitioners is the nature of the CAR: whether or not it is a
territorial and political subdivision. The Constitution provides in 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.
xxx xxx xxx
Sec. 10. No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected.
We have seen earlier that the CAR is not the autonomous region in the Cordilleras
contemplated by the Constitution, Thus, we now address petitioners' assertion that E. 0. No.
220 contravenes the Constitution by creating a new territorial and political subdivision.
After carefully considering the provisions of E.O. No. 220, we find that it did not create a new
territorial and political subdivision or merge existing ones into a larger subdivision.
1. Firstly, the CAR is not a public corporation or a territorial and political subdivision. It does
not have a separate juridical personality, unlike provinces, cities and municipalities. Neither
is it vested with the powers that are normally granted to public corporations, e.g. the power
to sue and be sued, the power to own and dispose of property, the power to create its own
sources of revenue, etc. As stated earlier, the CAR was created primarily to coordinate the
planning and implementation of programs and services in the covered areas.
The creation of administrative regions for the purpose of expediting the delivery of services
is nothing new. The Integrated Reorganization Plan of 1972, which was made as part of the
law of the land by virtue of Presidential Decree No. 1, established eleven (11) regions, later

increased to twelve (12), with definite regional centers and required departments and
agencies of the Executive Branch of the National Government to set up field offices therein.
The functions of the regional offices to be established pursuant to the Reorganization Plan
are: (1) to implement laws, policies, plans, programs, rules and regulations of the department
or agency in the regional areas; (2) to provide economical, efficient and effective service to
the people in the area; (3) to coordinate with regional offices of other departments, bureaus
and agencies in the area; (4) to coordinate with local government units in the area; and (5) to
perform such other functions as may be provided by law. [See Part II, chap. III, art. 1, of the
Reorganization Plan].
We can readily see that the CAR is in the same genre as the administrative regions created
under the Reorganization Plan, albeit under E.O. No. 220 the operation of the CAR requires
the participation not only of the line departments and agencies of the National Government
but also the local governments, ethno-linguistic groups and non-governmental organizations
in bringing about the desired objectives and the appropriation of funds solely for that
purpose.
2. Then, considering the control and supervision exercised by the President over the CAR
and the offices created under E.O. No. 220, and considering further the indispensable
participation of the line departments of the National Government, the CAR may be considered
more than anything else as a regional coordinating agency of the National Government,
similar to the regional development councils which the President may create under the
Constitution [Art. X, sec. 14]. These councils are "composed of local government officials,
regional heads of departments and other government offices, and representatives from nongovernmental organizations within the region for purposes of administrative decentralization
to strengthen the autonomy of the units therein and to accelerate the economic and social
growth and development of the units in the region." [Ibid.] In this wise, the CAR may be
considered as a more sophisticated version of the regional development council.
III
Finally, petitioners incidentally argue that the creation of the CAR contravened the
constitutional guarantee of the local autonomy for the provinces (Abra, Benguet, Ifugao,
Kalinga-Apayao and Mountain Province) and city (Baguio City) which compose the CAR.
We find first a need to clear up petitioners' apparent misconception of the concept of local
autonomy.
It must be clarified that the constitutional guarantee of local autonomy in the Constitution
[Art. X, sec. 2] refers to the administrative autonomy of local government units or, cast in
more technical language, the decentralization of government authority [Villegas v. Subido,
G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987
Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while
there was no express guarantee under the 1935 Constitution, the Congress enacted the Local
Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185), which ushered the

irreversible march towards further enlargement of local autonomy in the country [Villegas v.
Subido, supra.]
On the other hand, the creation of autonomous regions in Muslim Mindanao and the
Cordilleras, which is peculiar to the 1987 Constitution contemplates the grant
of political autonomy and not just administrative autonomy these regions. Thus, the
provision in the Constitution for an autonomous regional government with a basic structure
consisting of an executive department and a legislative assembly and special courts with
personal, family and property law jurisdiction in each of the autonomous regions [Art. X, sec.
18].
As we have said earlier, the CAR is a mere transitory coordinating agency that would prepare
the stage for political autonomy for the Cordilleras. It fills in the resulting gap in the process
of transforming a group of adjacent territorial and political subdivisions already enjoying
local or administrative autonomy into an autonomous region vested with political autonomy.
Anent petitioners' objection, we note the obvious failure to show how the creation of the CAR
has actually diminished the local autonomy of the covered provinces and city. It cannot be
over-emphasized that pure speculation and a resort to probabilities are insufficient to cause
the invalidation of E.O. No. 220.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.

[G.R. No. 93054 : December 4, 1990.]


192 SCRA 100
Cordillera Regional Assembly Member ALEXANDER P. ORDILLO, (Banaue), Ifugao
Provincial Board Member CORAZON MONTINIG, (Mayoyao), Former Vice-Mayor
MARTIN UDAN (Banaue), Municipal Councilors MARTIN GANO, (Lagawe), and
TEODORO HEWE, (Hingyon), Barangay Councilman PEDRO W. DULAG (Lamut);
Aguinaldo residents SANDY B. CHANGIWAN, and DONATO TIMAGO; Lamut resident
REY ANTONIO; Kiangan residents ORLANDO PUGUON, and REYNAND DULDULAO;
Lagawe residents TOMAS KIMAYONG, GREGORIO DANGO, GEORGE B. BAYWONG,
and VICENTE LUNAG; Hingyon residents PABLO M. DULNUAN and CONSTANCIO
GANO; Mayoyao residents PEDRO M. BAOANG, LEONARDO IGADNA, and MAXIMO
IGADNA; and Banaue residents PUMA-A CULHI, LATAYON BUTTIG, MIGUEL
PUMELBAN, ANDRES ORDILLO, FEDERICO MARIANO, SANDY BINOMNGA, GABRIEL
LIMMANG, ROMEO TONGALI, RUBEN BAHATAN, MHOMDY GABRIEL, and NADRES
GHAMANG, Petitioners, vs. THE COMMISSION ON ELECTIONS; The Honorable
FRANKLIN M. DRILON, Secretary of Justice; Hon. CATALINO MACARAIG, Executive
Secretary; The Cabinet Officer for Regional Development; Hon. GUILLERMO
CARAGUE, Secretary of Budget and Management; and Hon. ROSALINA S.
CAJUCOM, OIC, National Treasurer, Respondents.
DECISION
GUTIERREZ, JR., J.:
The question raised in this petition is whether or not the province of Ifugao, being the only
province which voted favorably for the creation of the Cordillera Autonomous Region can,
alone, legally and validly constitute such Region.
The antecedent facts that gave rise to this petition are as follows:
On January 30, 1990, the people of the provinces of Benguet, Mountain Province, Ifugao,
Abra and Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite held pursuant
to Republic Act No. 6766 entitled "An Act Providing for an Organic Act for the Cordillera
Autonomous Region."
The official Commission on Elections (COMELEC) results of the plebiscite showed that the
creation of the Region was approved by a majority of 5,889 votes in only the Ifugao

Province and was overwhelmingly rejected by 148,676 votes in the rest of the provinces and
city above-mentioned.
Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating that
the Organic Act for the Region has been approved and/or ratified by majority of the votes
cast only in the province of Ifugao. On the same date, the Secretary of Justice issued a
memorandum for the President reiterating the COMELEC resolution and provided:
". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city voting
favorably shall be included in the CAR, the province of Ifugao being the only province which
voted favorably then, alone, legally and validly constitutes the CAR." (Rollo, p. 7)
As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting the
elections in the Cordillera Autonomous Region of Ifugao on the first Monday of March 1991.
: nad

Even before the issuance of the COMELEC resolution, the Executive Secretary on February
5, 1990 issued a Memorandum granting authority to wind up the affairs of the Cordillera
Executive Board and the Cordillera Regional Assembly created under Executive Order No.
220.
On March 9, 1990, the petitioner filed a petition with COMELEC to declare the nonratification of the Organic Act for the Region. The COMELEC merely noted said petition.
On March 30, 1990, the President issued Administrative Order No. 160 declaring among
others that the Cordillera Executive Board and Cordillera Regional Assembly and all the
offices created under Executive Order No. 220 were abolished in view of the ratification of
the Organic Act.
- nad

The petitioners maintain that there can be no valid Cordillera Autonomous Region in only
one province as the Constitution and Republic Act No. 6766 require that the said Region be
composed of more than one constituent unit.
The petitioners, then, pray that the Court: (1) declare null and void COMELEC resolution No.
2259, the memorandum of the Secretary of Justice, the memorandum of the Executive
Secretary, Administrative Order No. 160, and Republic Act No. 6861 and prohibit and
restrain the respondents from implementing the same and spending public funds for the
purpose and (2) declare Executive Order No. 220 constituting the Cordillera Executive Board
and the Cordillera Regional Assembly and other offices to be still in force and effect until
another organic law for the Autonomous Region shall have been enacted by Congress and
the same is duly ratified by the voters in the constituent units. We treat the Comments of
the respondents as an answer and decide the case.
This petition is meritorious.
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.
It is explicit in Article X, Section 15 of the 1987 Constitution that:
"Section 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordillera 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." (Emphasis Supplied)
The keywords provinces, cities, municipalities and geographical areas connote that
"region" is to be made up of more than one constituent unit. The term "region" used in its
ordinary sense means two or more provinces. This is supported by the fact that the thirteen
(13) regions into which the Philippines is divided for administrative purposes are groupings

of contiguous provinces. (Integrated Reorganization Plan (1972), which was made as part of
the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a province by itself. To become
part of a region, it must join other provinces, cities, municipalities, and geographical areas.
It joins other units because of their common and distinctive historical and cultural heritage,
economic and social structures and other relevant characteristics. The Constitutional
requirements are not present in this case.
- nad

The well-established rule in statutory construction that the language of the Constitution, as
much as possible should be understood in the sense it has in common use and that the
words used in constitutional provisions are to be given their ordinary meaning except where
technical terms are employed, must then, be applied in this case. (See Baranda v. Gustilo,
165 SCRA 757, 770, [1988]; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31
SCRA 413, 422-423 [1970]).
Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766
strengthens the petitioner's position that the Region cannot be constituted from only one
province.
Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is
to be administered by the Cordillera government consisting of the Regional Government and
local government units. It further provides that:
"SECTION 2. The Regional Government shall exercise powers and functions
necessary for the proper governance and development of all provinces, cities,
municipalities, and barangay or ili within the Autonomous Region . . ."
From these sections, it can be gleaned that Congress never intended that a single province
may constitute the autonomous region. Otherwise, we would be faced with the absurd
situation of having two sets of officials, a set of provincial officials and another set of
regional officials exercising their executive and legislative powers over exactly the same
small area.
Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera
Assembly whose members shall be elected from regional assembly districts apportioned
among provinces and the cities composing the Autonomous Region.
chanroble s virtual law library

If we follow the respondent's position, the members of such Cordillera Assembly shall then
be elected only from the province of Ifugao creating an awkward predicament of having two
legislative bodies the Cordillera Assembly and the Sangguniang Panlalawigan
exercising their legislative powers over the province of Ifugao. And since Ifugao is one of the
smallest provinces in the Philippines, population-wise, it would have too many government
officials for so few people.
:-cralaw

Article XII, Section 10 of the law creates a Regional Planning and Development Board
composed of the Cordillera Governor, all the provincial governors and city mayors or their
representatives, two members of the Cordillera Assembly, and members representing the
private sector. The Board has a counterpart in the provincial level called the Provincial
Planning and Development Coordinator. The Board's functions (Article XII, Section 10, par.
2, Republic Act No. 6766) are almost similar to those of the Provincial Coordinator's (Title
Four, Chapter 3, Article 10, Section 220 (4), Batas Pambansa Blg. 337 Local Government
Code). If it takes only one person in the provincial level to perform such functions while on
the other hand it takes an entire Board to perform almost the same tasks in the regional
level, it could only mean that a larger area must be covered at the regional level. The
respondent's theory of the Autonomous Region being made up of a single province must,
therefore, fail.

Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos
(P10,000,000.00) to the Regional Government for its initial organizational requirements
cannot be construed as funding only a lone and small province.
These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous
Region was never contemplated by the law creating it.
The province of Ifugao makes up only 11% of the total population of the areas enumerated
in Article I, Section 2 (b) of Republic Act No. 6766 which include Benguet, Mountain
Province, Abra, Kalinga-Apayao and Baguio City. It has the second smallest number of
inhabitants from among the provinces and city above mentioned. The Cordillera population
is distributed in round figures as follows: Abra, 185,000; Benguet, 486,000; Ifugao,
149,000; Kalinga-Apayao, 214,000; Mountain Province, 116,000; and Baguio City, 183,000;
Total population of these five provinces and one city; 1,332,000 according to the 1990
Census (Manila Standard, September 30, 1990, p. 14).
There are other provisions of Republic Act No. 6766 which are either violated or which
cannot be complied with. Section 16 of Article V calls for a Regional Commission on
Appointments with the Speaker as Chairman and are (6) members coming from different
provinces and cities in the Region. Under the respondents' view, the Commission would
have a Chairman and only one member. It would never have a quorum. Section 3 of Article
VI calls for cabinet members, as far as practicable, to come from various provinces and
cities of the Region. Section 1 of Article VII creates a system of tribal courts for the various
indigenous cultural communities of the Region. Section 9 of Article XV requires the
development of a common regional language based upon the various languages and dialects
in the region which regional language in turn is expected to enrich the national language.
The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused
with provisions which rule against the sole province of Ifugao constituting the Region.
:-cralaw

To contemplate the situation envisioned by the respondent would not only violate the letter
and intent of the Constitution and Republic Act No. 6766 but would also be impractical and
illogical.
Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is not
applicable in the case at bar contrary to the view of the Secretary of Justice.
The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of
the votes cast by the constituent units called for the purpose" found in the Constitution,
Article X, Section 18. It stated:
x x x
". . . [I]t is thus clear that what is required by the Constitution is simple majority of
votes approving the Organic Act in individual constituent units and not a double
majority of the votes in all constituent units put together, as well as in the individual
constituent units."
This was the pronouncement applied by the Secretary of Justice in arriving at his conclusion
stated in his Memorandum for the President that:
x x x
". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as
mandated by R.A. No. 6766 became effective upon its approval by the majority of
the votes cast in the province of Ifugao. And considering the proviso in Section 13
(a) that only the provinces and city voting favorably shall be included in the CAR, the
province of Ifugao being the only province which voted favorably can, alone,
legally and validly constitute the CAR." (Rollo. p. 40).

The plebiscites mandated by the Constitution and Republic Act No. 6766 for the Cordillera
and Republic Act No. 6734 for the Autonomous Region in Muslim Mindanao determine (1)
whether there shall be an autonomous region in the Cordillera and in Muslim Mindanao and
(2) which provinces and cities, among those enumerated in the two Republic Acts, shall
comprise said Autonomous Regions. (See III, Record of the Constitutional Commission, 487492 [1986]).
The Abbas case established the rule to follow on which provinces and cities shall comprise
the autonomous region in Muslim Mindanao which is, consequently, the same rule to follow
with regard to the autonomous region in the Cordillera. However, there is nothing in the
Abbas decision which deals with the issue on whether an autonomous region, in either
Muslim Mindanao or Cordillera could exist despite the fact that only one province or one city
is to constitute it.
chanrobles virtual law library

Stated in another way, the issue in this case is whether the sole province of Ifugao can
validly and legally constitute the Cordillera Autonomous Region. The issue is not whether the
province of Ifugao is to be included in the Cordillera Autonomous Region. It is the first issue
which the Court answers in the instant case.
WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the Commission on
Elections, insofar as it upholds the creation of an autonomous region, the February 14, 1990
memorandum of the Secretary of Justice, the February 5, 1990 memorandum of the
Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 are declared
null and void while Executive Order No. 220 is declared to be still in force and effect until
properly repealed or amended.
SO ORDERED.

G.R. No. 176970

December 8, 2008

ROGELIO Z. BAGABUYO, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
BRION, J.:
Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the issuance of a
temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo
(petitioner) to prevent the Commission on Elections (COMELEC) from implementing Resolution No.
7837 on the ground that Republic Act No. 93712 - the law that Resolution No. 7837 implements - is
unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed and
sponsored House Bill No. 5859: "An Act Providing for the Apportionment of the Lone Legislative
District of the City of Cagayan De Oro."3 This law eventually became Republic Act (R.A.) No.
9371.4 It increased Cagayan de Oro's legislative district from one to two. For the election of May
2007, Cagayan de Oro's voters would be classified as belonging to either the first or the second
district, depending on their place of residence. The constituents of each district would elect their own
representative to Congress as well as eight members of the Sangguniang Panglungsod.
Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:
Legislative Districts - The lone legislative district of the City of Cagayan De Oro is hereby
apportioned to commence in the next national elections after the effectivity of this Act.
Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi,
Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan
and Bisigan shall comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.5

On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376 implementing R.A.
No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27,
2007.7 On 10 April 2008, the petitioner amended the petition to include the following as respondents:
Executive Secretary Eduardo Ermita; the Secretary of the Department of Budget and Management;
the Chairman of the Commission on Audit; the Mayor and the members of the Sangguniang
Panglungsod of Cagayan de Oro City; and its Board of Canvassers. 8
In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds,
the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the
rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the
division or conversion of a local government unit. He prayed for the issuance of an order directing
the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution
No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single
legislative district for Cagayan de Oro.
Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ of
preliminary injunction, the May 14 National and Local Elections proceeded according to R.A. No.
9371 and Resolution No. 7837.
The respondent's Comment on the petition, filed through the Office of the Solicitor General, argued
that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is
vested with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No.
9371 merely increased the representation of Cagayan de Oro City in the House of Representatives
and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the
criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a
creation, division, merger, abolition or substantial alteration of boundaries of a province, city,
municipality, or barangay; in this case, no such creation, division, merger, abolition or alteration of
boundaries of a local government unit took place; and 4) R.A. No. 9371 did not bring about any
change in Cagayan de Oro's territory, population and income classification; hence, no plebiscite is
required.
The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v. PAGCOR,9 the
Court may take cognizance of this petition if compelling reasons, or the nature and importance of the
issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City's
reapportionment under R.A. No. 9371 falls within the meaning of creation, division, merger, abolition
or substantial alteration of boundaries of cities under Section 10, Article X of the Constitution; 3) the
creation, division, merger, abolition or substantial alteration of boundaries of local government units
involve a common denominator - the material change in the political and economic rights of the local
government units directly affected, as well as of the people therein; 4) a voter's sovereign power to
decide on who should be elected as the entire city's Congressman was arbitrarily reduced by at least
one half because the questioned law and resolution only allowed him to vote and be voted for in the
district designated by the COMELEC; 5) a voter was also arbitrarily denied his right to elect the
Congressman and the members of the city council for the other legislative district, and 6)

government funds were illegally disbursed without prior approval by the sovereign electorate of
Cagayan De Oro City.10
THE ISSUES
The core issues, based on the petition and the parties' memoranda, can be limited to the following
contentious points:
1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be
dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro
City, or does it involve the division and conversion of a local government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?
OUR RULING
Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.
The hierarchy of courts principle.
The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.11 It was pursuant to this original jurisdiction that the petitioner filed the
present petition.
While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a direct invocation of the
Supreme Court's jurisdiction is allowed only when there are special and important reasons therefor,
clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly
overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction,
justify the existence of this rule otherwise known as the "principle of hierarchy of courts." More
generally stated, the principle requires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court.14
Among the cases we have considered sufficiently special and important to be exceptions to the rule,
are petitions for certiorari, prohibition, mandamus and quo warranto against our nation's lawmakers
when the validity of their enactments is assailed. 15 The present petition is of this nature; its subject
matter and the nature of the issues raised - among them, whether legislative reapportionment
involves a division of Cagayan de Oro City as a local government unit - are reasons enough for
considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as
well a resolution of the COMELEC en banc issued to implement the legislative apportionment that
R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution, the case falls under
Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65 petition
forcertiorari.16 For these reasons, we do not see the principle of hierarchy of courts to be a stumbling
block in our consideration of the present case.

The Plebiscite Requirement.


The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local
government unit, and does not merely provide for the City's legislative apportionment. This argument
essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of
legislative districts and division of local government units.
Legislative apportionment is defined by Black's Law Dictionary as the determination of the number
of representatives which a State, county or other subdivision may send to a legislative body.17It is the
allocation of seats in a legislative body in proportion to the population; the drawing of voting district
lines so as to equalize population and voting power among the districts. 18 Reapportionment, on the
other hand, is the realignment or change in legislative districts brought about by changes in
population and mandated by the constitutional requirement of equality of representation.19
Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative
apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of not more than two
hundred fifty members unless otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by law, shall be elected through a partylist 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.20 In its strict and
proper sense, a municipality has been defined as "a body politic and corporate constituted by the
incorporation of the inhabitants of a city or town for the purpose of local government thereof." 21 The
creation, division, merger, abolition or alteration of boundary of local government units, i.e., of
provinces, cities, municipalities, and barangays, are covered by the Article on Local Government
(Article X). Section 10 of this Article provides:
No province, city, municipality, or barangay may be created, divided, merged, abolished, or
its boundary substantially altered, except in accordance with the criteria established in the
local government code and subject to approval by a majority of the votes cast in a plebiscite
in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has
been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment
of legislative districts,22and likewise acts on local government units by setting the standards for their
creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing,
merging, abolishing local government units and altering their boundaries through legislation. Other
than this, not much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.
The concern that leaps from the text of Article VI, Section 5 is political representation and the means
to make a legislative district sufficiently represented so that the people can be effectively heard. As
above stated, the aim of legislative apportionment is "to equalize population and voting power
among districts."23 Hence, emphasis is given to the number of people represented; the uniform and
progressive ratio to be observed among the representative districts; and accessibility and
commonality of interests in terms of each district being, as far as practicable, continuous, compact
and adjacent territory. In terms of the people represented, every city with at least 250,000 people
and every province (irrespective of population) is entitled to one representative. In this sense,
legislative districts, on the one hand, and provinces and cities, on the other, relate and interface with
each other. To ensure continued adherence to the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given standards are met.
In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10
expressly speaks of how local government units may be "created, divided, merged, abolished, or its
boundary substantially altered." Its concern is the commencement, the termination, and the
modification of local government units' corporate existence and territorial coverage; and it speaks of
two specific standards that must be observed in implementing this concern, namely, the criteria
established in the local government code and the approval by a majority of the votes cast in a
plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160)
passed in 1991, the criteria of income, population and land area are specified as verifiable indicators
of viability and capacity to provide services.24 The division or merger of existing units must comply
with the same requirements (since a new local government unit will come into being), provided that a
division shall not reduce the income, population, or land area of the unit affected to less than the
minimum requirement prescribed in the Code.25
A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the
requirement of a plebiscite. The Constitution and the Local Government Code expressly require a
plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local
government unit.26 In contrast, no plebiscite requirement exists under the apportionment or
reapportionment provision. In Tobias v. Abalos,27 a case that arose from the division of the
congressional district formerly covering San Juan and Mandaluyong into separate districts, we
confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment.
The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of
its conversion into a highly urbanized city, while none was held for San Juan. In explaining why this
happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of
the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by Article
X, Section 10 the Local Government Code; the creation of a new legislative district only followed as

a consequence. In other words, the apportionment alone and by itself did not call for a plebiscite, so
that none was needed for San Juan where only a reapportionment took place.
The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under
Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two
provisions, the nature of the concepts they embody as heretofore discussed, and their areas of
application.
A Bit of History.
In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our
apportionment provision, noting its roots from the Fourteenth Amendment29 of the U.S. Constitution
and from the constitutions of some American states. The Philippine Organic Act of 1902 created the
Philippine Assembly,30 the body that acted as the lower house of the bicameral legislature under the
Americans, with the Philippine Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate,
the members of the Philippine Assembly were elected by representative districts previously
delineated under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats
of the Philippine Assembly among the provinces as nearly as practicable according to population.
Thus, legislative apportionment first started in our country.
The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision,
dividing the country into 12 senate districts and 90 representative districts electing one delegate
each to the House of Representatives. Section 16 of the Act specifically vested the Philippine
Legislature with the authority to redistrict the Philippine Islands.
Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment
together with "district" as the basic unit of apportionment; the concern was "equality of
representation . . . as an essential feature of republican institutions" as expressed in the leading
case of Macias v. COMELEC.31 The case ruled that inequality of representation is a justiciable, not a
political issue, which ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that followed, as no plebiscite
was required.
Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation "in
accordance with the number of their respective inhabitants and on the basis of a uniform and
progressive ratio" with each district being, as far as practicable, contiguous, compact and adjacent
territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only
from the previous one by the presence of party-list representatives. In neither Constitution was a
plebiscite required.
The need for a plebiscite in the creation, division, merger, or abolition of local government units was
not constitutionally enshrined until the 1973 Constitution. However, as early as 1959, R.A. No.
226433 required, in the creation of barrios by Provincial Boards, that the creation and definition of
boundaries be "upon petition of a majority of the voters in the areas affected." In 1961, the Charter of
the City of Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take effect

after a majority of voters of the Municipality of Caloocan vote in favor of the conversion of their
municipality into a city in a plebiscite." This was followed up to 1972 by other legislative enactments
requiring a plebiscite as a condition for the creation and conversion of local government units as well
as the transfer of sitios from one legislative unit to another.34 In 1973, the plebiscite requirement was
accorded constitutional status.
Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a
requirement in legislative apportionment or reapportionment. After it became constitutionally
entrenched, a plebiscite was also always identified with the creation, division, merger, abolition and
alteration of boundaries of local government units, never with the concept of legislative
apportionment.
Nature and Areas of Application.
The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit
because it is the basis for the election of a member of the House of Representatives and members
of the local legislative body. It is not, however, a political subdivision through which functions of
government are carried out. It can more appropriately be described as a representative unit that may
or may not encompass the whole of a city or a province, but unlike the latter, it is not a corporate
unit. Not being a corporate unit, a district does not act for and in behalf of the people comprising the
district; it merely delineates the areas occupied by the people who will choose a representative in
their national affairs. Unlike a province, which has a governor; a city or a municipality, which has a
mayor; and a barangay, which has a punong barangay, a district does not have its own chief
executive. The role of the congressman that it elects is to ensure that the voice of the people of the
district is heard in Congress, not to oversee the affairs of the legislative district. Not being a
corporate unit also signifies that it has no legal personality that must be created or dissolved and has
no capacity to act. Hence, there is no need for any plebiscite in the creation, dissolution or any other
similar action on a legislative district.
The local government units, on the other hand, are political and corporate units. They are the
territorial and political subdivisions of the state.35 They possess legal personality on the authority of
the Constitution and by action of the Legislature. The Constitution defines them as entities that
Congress can, by law, create, divide, abolish, merge; or whose boundaries can be altered based on
standards again established by both the Constitution and the Legislature. 36 A local government unit's
corporate existence begins upon the election and qualification of its chief executive and a majority of
the members of its Sanggunian.37
As a political subdivision, a local government unit is an "instrumentality of the state in carrying out
the functions of government."38 As a corporate entity with a distinct and separate juridical personality
from the State, it exercises special functions for the sole benefit of its constituents. It acts as "an
agency of the community in the administration of local affairs" 39 and the mediums through which the
people act in their corporate capacity on local concerns.40 In light of these roles, the Constitution saw
it fit to expressly secure the consent of the people affected by the creation, division, merger, abolition
or alteration of boundaries of local government units through a plebiscite.

These considerations clearly show the distinctions between a legislative apportionment or


reapportionment and the division of a local government unit. Historically and by its intrinsic nature, a
legislative apportionment does not mean, and does not even imply, a division of a local government
unit where the apportionment takes place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under the Local Government Code should not
apply to and be a requisite for the validity of a legislative apportionment or reapportionment.
R.A. No. 9371 and COMELEC Res. No. 7837
R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance
with the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core
provision - Section 1 - provides:
SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro
is hereby apportioned to commence in the next national elections after the effectivity of this
Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi,
Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan
and Bisigan shall comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from Barangay
1 to Barangay 40 shall comprise the second district.
Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes
place or is mandated. Cagayan de Oro City politically remains a single unit and its administration is
not divided along territorial lines. Its territory remains completely whole and intact; there is only the
addition of another legislative district and the delineation of the city into two districts for purposes of
representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does
not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two
districts.
Admittedly, the legislative reapportionment carries effects beyond the creation of another
congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837, for
additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional
apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly traceable
to R.A. No. 9371 but to another law - R.A. No. 663641 - whose Section 3 provides:
SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding the City
of Cebu, City of Davao, and any other city with more than one representative district shall
have eight (8) councilors for each district who shall be residents thereof to be elected by the
qualified voters therein, provided that the cities of Cagayan de Oro, Zamboanga, Bacolod,
Iloilo and other cities comprising a representative district shall have twelve (12) councilors
each and all other cities shall have ten (10) councilors each to be elected at large by the
qualified voters of the said cities: Provided, That in no case shall the present number of
councilors according to their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de Oro into two
political and corporate units and territories. Rather than divide the city either territorially or as a
corporate entity, the effect is merely to enhance voter representation by giving each city voter more
and greater say, both in Congress and in the Sangguniang Panglunsod.
To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and
12 city council members citywide for its population of approximately 500,000. 42 By having two
legislative districts, each of them with one congressman, Cagayan de Oro now effectively has two
congressmen, each one representing 250,000 of the city's population. In terms of services for city
residents, this easily means better access to their congressman since each one now services only
250,000 constituents as against the 500,000 he used to represent. The same goes true for
the Sangguniang Panglungsod with its ranks increased from 12 to 16 since each legislative district
now has 8 councilors. In representation terms, the fewer constituents represented translate to a
greater voice for each individual city resident in Congress and in the Sanggunian; each
congressman and each councilor represents both a smaller area and fewer constituents whose
fewer numbers are now concentrated in each representative. The City, for its part, now has twice the
number of congressmen speaking for it and voting in the halls of Congress. Since the total number
of congressmen in the country has not increased to the point of doubling its numbers, the presence
of two congressman (instead of one) from the same city cannot but be a quantitative and
proportional improvement in the representation of Cagayan de Oro City in Congress.
Equality of representation.
The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only
93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of
rural barangays while District 2 is composed mostly of urban barangays.43 Thus, R.A. No. 9371
violates the principle of equality of representation.
A clarification must be made. The law clearly provides that the basis for districting shall be
the number of the inhabitants of a city or a province, not the number of registered voters therein. We
settled this very same question in Herrera v. COMELEC44 when we interpreted a provision in R.A.
No. 7166 and COMELEC Resolution No. 2313 that applied to the Province of Guimaras. We
categorically ruled that the basis for districting is the number of inhabitants of the Province of
Guimaras by municipality based on the official 1995 Census of Population as certified to by Tomas P.
Africa, Administrator of the National Statistics Office.
The petitioner, unfortunately, did not provide information about the actual population of Cagayan de
Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office
which shows thatbarangays comprising Cagayan de Oro's first district have a total population of
254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity
in the population sizes of the districts.45 The Constitution, however, does not require mathematical
exactitude or rigid equality as a standard in gauging equality of representation. 46 In fact, for cities, all
it asks is that "each city with a population of at least two hundred fifty thousand shall have one
representative," while ensuring representation for every province regardless of the size of its
population. To ensure quality representation through commonality of interests and ease of access by
the representative to the constituents, all that the Constitution requires is that every legislative district

should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found and does not require their division,
merger or transfer to satisfy the numerical standard it imposes. Its requirements are satisfied despite
some numerical disparity if the units are contiguous, compact and adjacent as far as practicable.
The petitioner's contention that there is a resulting inequality in the division of Cagayan de Oro City
into two districts because the barangays in the first district are mostly rural barangays while the
second district is mostly urban, is largely unsubstantiated. But even if backed up by proper proof, we
cannot question the division on the basis of the difference in the barangays' levels of development or
developmental focus as these are not part of the constitutional standards for legislative
apportionment or reapportionment. What the components of the two districts of Cagayan de Oro
would be is a matter for the lawmakers to determine as a matter of policy. In the absence of any
grave abuse of discretion or violation of the established legal parameters, this Court cannot intrude
into the wisdom of these policies.47
WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the petitioner.
SO ORDERED.

THE PROVINCE OF NORTH COTABATO, duly G.R. No. 183591


represented by GOVERNOR JESUS SACDALAN Present:
and/or VICE-GOVERNOR EMMANUEL PIOL,
for and in his own behalf,
PUNO, C.J.,
Petitioners,
QUISUMBING,
YNARES- versus SANTIAGO,
CARPIO,
AUSTRIATHE GOVERNMENT OF THE REPUBLIC OF
MARTINEZ,
THE PHILIPPINES PEACE PANEL ON
CORONA,
ANCESTRAL DOMAIN (GRP), represented by
CARPIO
SEC. RODOLFO GARCIA, ATTY. LEAH
MORALES,
ARMAMENTO,
ATTY.
SEDFREY
AZCUNA,
CANDELARIA, MARK RYAN SULLIVAN
TINGA,
and/or GEN. HERMOGENES ESPERON, JR.,
CHICOthe latter in his capacity as the present and dulyNAZARIO,
appointed Presidential Adviser on the Peace
VELASCO, JR.,
Process (OPAPP) or the so-called Office of the
NACHURA,
Presidential Adviser on the Peace Process,
REYES,
Respondents.
LEONARDO-DE
x--------------------------------------------x
CASTRO, &
CITY GOVERNMENT OF ZAMBOANGA, as
BRION, JJ.
represented by HON. CELSO L. LOBREGAT, Promulgated:
City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, October 14, 2008
Rep. MA. ISABELLE G. CLIMACO, District 1,
and Rep. ERICO BASILIO A. FABIAN, District
2, City ofZamboanga,
Petitioners,
- versus G.R. No. 183752

THE GOVERNMENT OF THE REPUBLIC OF


THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C.
GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by
CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,
- versus
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO,
ATTY.
SEDFREY
CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary.
G.R. No. 183893
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF
ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS,
in his capacity as Vice-Governor and Presiding
Officer of the Sangguniang Panlalawigan, HON.
CECILIA
JALOSJOS
CARREON,
st
Congresswoman, 1 Congressional District, HON.
CESAR
G.
JALOSJOS,
Congressman,

3rdCongressional District, and Members of the


Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO
R. CABIGON, JR., HON. ULDARICO M.
MEJORADA
II,
HON.
EDIONAR
M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON.FELIXBERTO
C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING,
HON. ANECITO
S.
DARUNDAY,
HON.
ANGELICA
J.
CARREON
and
HON.
LUZVIMINDA E. TORRINO,
Petitioners,
G.R. No. 183951
- versus THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON.
RODOLFO
C.
GARCIA
and
HON.
HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY,
and AQUILINO L. PIMENTEL III,
Petitioners,
- versus THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO
C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING
PANEL,
represented
by
its
Chairman

MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY
OF
LINAMON
duly
represented by its Municipal Mayor NOEL N.
DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE
, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep.
by HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of G.R. No. 183962
the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf
and on behalf of Indigenous Peoples in Mindanao
Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO G. AWAT, JOSELITO C. ALISUAG
and RICHALEX G. JAGMIS, as citizens and
residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.

x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION,
INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT
FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on
the armed conflict in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all areas in the
country where there has been a long-standing armed conflict. Yet again, the Court
is tasked to perform a delicate balancing act. It must uncompromisingly delineate
the bounds within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS

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.[1]
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
GRP-MILF 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.
The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict, and refrain from
the use of threat or force to attain undue advantage while the peace negotiations on
the substantive agenda are on-going.[2]
Early on, however, it was evident that there was not going to be any smooth sailing
in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the
MILF attacked a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao del Norte.[3] In
response, then President Joseph Estrada declared and carried out an all-out-war
against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the
peace talks.The MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the Government of
Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF

to return to the negotiating table, the MILF convened its Central Committee to
seriously discuss the matter and, eventually, decided to meet with the GRP.[4]
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same date the
Agreement on the General Framework for the Resumption of Peace Talks Between
the GRP and the MILF. The MILF thereafter suspended all its military actions.[5]
Formal peace talks between the parties were held in Tripoli, Libya from June 2022, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace
(Tripoli Agreement 2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral DomainAspect. With regard to the Ancestral Domain Aspect, the
parties in Tripoli Agreement 2001 simply agreed that the same be discussed further
by the Parties in their next meeting.
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7,
2001 which ended with the signing of the Implementing Guidelines on the Security
Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the
parties. This was followed by the Implementing Guidelines on the Humanitarian
Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from 2002 to
2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13,
2003 and he was replaced by Al Haj Murad, who was then the chief peace
negotiator of the MILF.Murads position as chief peace negotiator was taken over
by Mohagher Iqbal.[6]
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious consensus ever embodied
in an instrument the MOA-AD which is assailed principally by the present
petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[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.[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.[10]
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition[11] filed by the City of Zamboanga,
[12]
Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio
Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboangabe excluded from the Bangsamoro Homeland
and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease and
desist from formally signing the MOA-AD.[13] The Court also required the Solicitor
General to submit to the Court and petitioners the official copy of the final draft of
the MOA-AD,[14]to which she complied.[15]
Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be

enjoined from signing the MOA-AD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and
the members[18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed
on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,
[19]
docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be
declared null and void and without operative effect, and that respondents be
enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel
III filed a petition for Prohibition, [20] docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents from formally
signing and executing the MOA-AD and or any other agreement derived therefrom
or similar thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the MILF Peace
Negotiating Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their
petitions-/comments-in-intervention. Petitioners-in-Intervention
include
Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in
Lanao del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin
Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario
Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
for Peace and Development (MMMPD) filed their respective Comments-inIntervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of petitioners
submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that


the Executive Department shall thoroughly review the MOA-AD and pursue
further negotiations to address the issues hurled against it, and thus moved to
dismiss the cases. In the succeeding exchange of pleadings, respondents motion
was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum
of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government
Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines
Peace Panel committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it negotiated and initiated the MOA
vis--vis ISSUES Nos. 4 and 5;
4. 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;
5. 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;
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;
6. 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
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.
[24]

The Court, thereafter, ordered the parties to submit their respective


Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject
five petitions and six petitions-in-intervention against the MOA-AD, as well as the
two comments-in-intervention in favor of the MOA-AD, the Court takes an
overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading Terms of Reference (TOR), the MOA-AD includes not
only four earlier agreements between the GRP and MILF, but also two agreements
between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace
Agreement on the Implementation of the 1976 Tripoli Agreement, signed on
September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples
Rights Act (IPRA),[26] and several international law instruments the ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of compact rights
entrenchment
emanating
from
the
regime
of dar-ul-muahada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device.
During the height of the Muslim Empire, early Muslim jurists tended to see the
world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or ineffective.
[27]
This way of viewing the world, however, became more complex through the
centuries as the Islamic world became part of the international community of
nations.
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the world
into dar-ul-Islamand dar-ul-harb eventually lost its meaning. New terms were
drawn up to describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-muahada(land of compact) and dar-ul-sulh (land
of treaty) referred to countries which, though under a secular regime, maintained
peaceful and cooperative relations with Muslim States, having been bound to each
other by treaty or agreement. Dar-ul-aman (land of order), on the other hand,

referred to countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.[28]
It thus appears that the compact rights entrenchment emanating from the regime
of dar-ul-muahada and dar-ul-sulh simply refers to all other agreements between
the MILF and the Philippine government the Philippines being the land of compact
and peace agreement that partake of the nature of a treaty device, treaty being
broadly defined as any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD].[29]
The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED
AS FOLLOWS, and starts with its main body.
The main body of the MOA-AD is divided
into four strands, namely, Concepts and
Principles, Territory, Resources, and
Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros. It defines Bangsamoro people as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.[30]
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD,
includes not only Moros as traditionally understood even by Muslims,[31] but
all indigenous peoplesof Mindanao and its adjacent islands. The MOA-AD adds
that the freedom of choice of indigenous peoples shall be respected. What this
freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of
which is vested exclusively in the Bangsamoro people by virtue of

their prior rights of occupation.[32] Both parties to the MOA-AD acknowledge


that ancestral domain does not form part of the public domain.[33]
The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under
the suzerain authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or karajaan/kadatuan resembling a
body politic endowed with all the elements of a nation-state in the modern sense.[34]
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people
on the past suzerain authority of the sultanates. As gathered, the territory defined as
the Bangsamoro homeland was ruled by several sultanates and, specifically in the
case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of
independent principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.[35]
The MOA-AD goes on to describe the Bangsamoro people as the First
Nation with defined territory and with a system of government having entered into
treaties of amity and commerce with foreign nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of
that territory, particularly those known as Indians. In Canada, each of these
indigenous peoples is equally entitled to be called First Nation, hence, all of them
are usually described collectively by the plural First Nations. [36] To that extent, the
MOA-AD, by identifying the Bangsamoro people as the First Nation suggesting its
exclusive entitlement to that designation departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the Bangsamoro Juridical
Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and AncestralLands of the Bangsamoro.[37]

B. TERRITORY

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-Sulu-Palawan
geographic region.[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.[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.[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.[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; [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 resources.
[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. [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.[45] There is no similar provision on the sharing of minerals and
allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
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 cooperation agreements.[46]
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.[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.[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.[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 longer possible, reparation is to be in such form as mutually
determined by the Parties.[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.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the details for the effective enforcement and the mechanisms and
modalities for the actual implementation of the MOA-AD. The MOA-AD
explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE.
[52]

The associative relationship


between the Central Government
and the BJE
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. [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.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under Categories A
and B earlier mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.
[54]
Courts decline to issue advisory opinions or to resolve hypothetical or feigned
problems, or mere academic questions. [55] The limitation of the power of judicial
review to actual cases and controversies defines the role assigned to the judiciary
in a tripartite allocation of power, to assure that the courts will not intrude into
areas committed to the other branches of government.[56]
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished from a

hypothetical or abstract difference or dispute. There must be a contrariety of legal


rights that can be interpreted and enforced on the basis of existing law and
jurisprudence.[57] The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial
determination.[58]
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. [59] For a
case to be considered ripe for adjudication, it is a prerequisite that something had
then been accomplished or performed by either branch before a court may come
into the picture,[60] and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action. [61] He must show that
he has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of.[62]
The Solicitor General argues that there is no justiciable controversy that is
ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points
subject to further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that does
not automatically create legally demandable rights and obligations until
the list of operative acts required have been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable
Court has no authority to pass upon issues based on hypothetical or
feigned constitutional problems or interests withno concrete
bases. Considering the preliminary character of the MOA-AD, there are
no concrete acts that could possibly violate petitioners and intervenors
rights since the acts complained of are mere contemplated steps toward
the formulation of a final peace agreement. Plainly, petitioners and
intervenors perceived injury, if at all, is merely imaginary and illusory
apart
from
being
unfounded
and
based
on
mere
conjectures. (Underscoring supplied)

The Solicitor General cites[63] the following provisions of the MOA-AD:


TERRITORY
xxxx
2. Toward this end, the Parties enter into the following
stipulations:
xxxx
d. Without derogating from the requirements of prior
agreements, the Government stipulates to conduct and
deliver, using all possible legal measures, within twelve
(12) months following the signing of the MOA-AD, a
plebiscite covering the areas as enumerated in the list
and depicted in the map as Category A attached herein
(the Annex). The Annex constitutes an integral part of
this framework agreement. Toward this end, the Parties
shall endeavor to complete the negotiations and resolve
all outstanding issues on the Comprehensive Compact
within fifteen (15) months from the signing of the
MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable
it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to
non-derogation of prior agreements and within the stipulated

timeframe to be contained in the Comprehensive Compact.


[64]
(Underscoring supplied)

The Solicitor Generals arguments fail to persuade.


Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held:
x x x [B]y the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have ripened into
a judicial controversy even without any other overt act. Indeed, even a
singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts. [66]

In Santa Fe Independent School District v. Doe, [67] the United States


Supreme Court held that the challenge to the constitutionality of the schools policy
allowing student-led prayers and speeches before games was ripe for adjudication,
even if no public prayer had yet been led under the policy, because the policy was
being challenged as unconstitutional on its face.[68]
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,[69] decided in 1992, the United
States Supreme Court held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1,
1996, because the parties agreed that New York had to take immediate action to
avoid the provision's consequences.[70]

The present petitions pray for Certiorari,[71] Prohibition, and


Mandamus. Certiorari and Prohibition are remedies granted by law when any
tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the
case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. [72] Mandamus is a remedy
granted by law when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the
use or enjoyment of a right or office to which such other is entitled. [73] Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials.[74]
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.[75] The said executive order
requires that [t]he government's policy framework for peace, including the
systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order.[76]
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be discussed
in greater detail later, such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework, implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF
the amendment of the Constitution.Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their duties under E.O. No. 3
and the provisions of the Constitution and statutes, the petitions make a prima

facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government
is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.[77]
B. LOCUS STANDI
For a party to have locus standi, one must allege such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.[78]
Because constitutional cases are often public actions in which the relief sought is
likely to affect other persons, a preliminary question frequently arises as to this
interest in the constitutional question raised.[79]
When suing as a citizen, the person complaining must allege that he has been or is
about to be denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason of the statute or
act complained of.[80] When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.[81]
For a taxpayer, one is allowed to sue where there is an assertion that public funds
are illegally disbursed or deflected to an illegal purpose, or that there is a wastage
of public funds through the enforcement of an invalid or unconstitutional law.
[82]
The Court retains discretion whether or not to allow a taxpayers suit.[83]
In the case of a legislator or member of Congress, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless substantial
injury that can be questioned by legislators. A member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.[84]
An organization may be granted standing to assert the rights of its members, [85] but
the mere invocation by the Integrated Bar of the Philippines or any member of the

legal profession of the duty to preserve the rule of law does not suffice to clothe it
with standing.[86]
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.[87]
Intervenors, meanwhile, may be given legal standing upon showing of facts that
satisfy the requirements of the law authorizing intervention,[88] such as a legal
interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,[89] where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness,
novelty and weight as precedents.[90] The Courts forbearing stance on locus
standi on issues involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within
the limits of the Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.[91]
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) andCity of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province
of
Sultan
Kudarat,
City
of
Isabela and Municipality of Linamon have locus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether in
whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which
would be expanded to form the BJE territory. Petitioners legal standing is thus
beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the
issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct of an
illegal and unconstitutional plebiscite to delineate the BJE territory. On that score
alone, they can be given legal standing. Their allegation that the issues involved in
these petitions are of undeniable transcendental importance clothes them with
added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
publics constitutional right to be informed of the MOA-AD, as well as on a
genuine legal interest in the matter in litigation, or in the success or failure of either
of the parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the
3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.
Gomez, et al.,as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the Court exercises
its discretion to relax the procedural technicality onlocus standi given the
paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc.,
a non-government organization of Muslim lawyers, allege that they stand to be
benefited or prejudiced, as the case may be, in the resolution of the petitions

concerning the MOA-AD, and prays for the denial of the petitions on the grounds
therein stated. Such legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that [n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the MOA.[92]
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.[93]
In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic
principle not being a magical formula that automatically dissuades courts in
resolving a case, it will decide cases, otherwise moot and academic, if it finds that
(a) there is a grave violation of the Constitution; [95] (b) the situation is of
exceptional character and paramount public interest is involved;[96] (c) the
constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; [97] and (d) the case is capable of repetition yet
evading review.[98]
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer. Thus,
once a suit is filed and the doer voluntarily ceases the challenged conduct, it does
not automatically deprive the tribunal of power to hear and determine the case and
does not render the case moot especially when the plaintiff seeks damages or prays
for injunctive relief against the possible recurrence of the violation.[99]
The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable
in the present cases as they were, not only in David, but also in Province of
Batangas v. Romulo[100] and Manalo v. Calderon[101] where the Court similarly
decided them on the merits, supervening events that would ordinarily have
rendered the same moot notwithstanding.

Petitions not mooted


Contrary then to the asseverations of respondents, the non-signing of the MOA-AD
and the eventual dissolution of the GRP Peace Panel did not moot the present
petitions. It bears emphasis that the signing of the MOA-AD did not push through
due to the Courts issuance of a Temporary Restraining Order.
Contrary too to respondents position, the MOA-AD cannot be considered a mere
list of consensus points, especially given its nomenclature, the need to have it
signed or initialed by all the parties concerned on August 5, 2008, and the farreaching Constitutional implications of these consensus points, foremost of
which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part
of respondents to amend and effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take effect. Consequently,
the present petitions are not confined to the terms and provisions of the MOA-AD,
but to other on-goingand future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and academic
simply by the public disclosure of the MOA-AD,[102] the manifestation that it will
not be signed as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount
public interest
There is no gainsaying that the petitions are imbued with paramount public
interest, involving a significant part of the countrys territory and the wide-ranging
political modifications of affected LGUs. The assertion that the MOA-AD is
subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case,
the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.[103] where the Court did not pontificat[e]
on issues which no longer legitimately constitute an actual case or controversy [as
this] will do more harm than good to the nation as a whole.
The present petitions must be differentiated from Suplico. Primarily, in Suplico,
what was assailed and eventually cancelled was a stand-alone government
procurement contract for a national broadband network involving a one-time
contractual relation between two partiesthe government and a private foreign
corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion in Suplico found
nothing exceptional therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of
agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD
which dwells on theAncestral Domain Aspect of said Tripoli Agreement is the third
such component to be undertaken following the implementation of
the Security Aspect in August 2001 and theHumanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28,
2008 to the Solicitor General, has stated that no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[-AD], mootness will
not set in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement
2001, in another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the
government is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured, it is

minded to render a decision on the merits in the present petitions to formulate


controlling principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents invite the Courts attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the
doctrine of capable of repetition yet evading review can override mootness,
provided the party raising it in a proper case has been and/or continue to be
prejudiced or damaged as a direct result of their issuance. They contend that the
Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v.
GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as
one for Prohibition as it has far reaching implications and raises questions that
need to be resolved.[105] At all events, the Court has jurisdiction over most if not the
rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.[106]There is a reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities
of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be
subjected to the same problem in the future as respondents actions are capable of
repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the
MOA-AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed
the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
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.[107]

As early as 1948, in Subido v. Ozaeta,[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.[109]
In the 1976 case of Baldoza v. Hon. Judge Dimaano,[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 x[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 nation[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.
[113]

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 concern[114] faces no serious challenge. In fact, respondents admit that the
MOA-AD is indeed of public concern.[115] In previous cases, the Court found that
the regularity of real estate transactions entered in the Register of Deeds, [116] the
need for adequate notice to the public of the various laws, [117] the civil service
eligibility of a public employee,[118] the proper management of GSIS funds
allegedly used to grant loans to public officials, [119] the recovery of the Marcoses
alleged ill-gotten wealth,[120] and the identity of party-list nominees,[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 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. [122] (Emphasis
and italics in the original)

Intended as a splendid symmetry[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.[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.[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.[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.[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.[128]

The following discourse, after Commissioner Hilario Davide, Jr., sought


clarification on the issue, is enlightening.
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.[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-inhand, it is absurd to say that the broader [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.
[131]
Envisioned to becorollary to the twin rights to information and disclosure is the
design for feedback mechanisms.
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.
[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.[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.
[134]
Included as a component of the comprehensive peace process is consensusbuilding 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.
[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.[136]
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. [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.[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.
PAPP Esperon committed grave abuse of
discretion
The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed
and craftedruns contrary to and in excess of the legal authority , and amounts to
a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law
and discharge the functions within the authority granted by the President.[139]
Petitioners are not claiming a seat at the negotiating table, contrary to respondents
retort in justifying the denial of petitioners right to be consulted. Respondents
stance manifests the manner by which they treat the salient provisions of E.O. No.
3 on peoples participation. Such disregard of the express mandate of the President
is not much different from superficial conduct toward token provisos that border on
classic lip service.[140] It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
As for respondents invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when contrasted
with E.O. No. 3s explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even recognizes the exercise
of the publics right even before the GRP makes its official recommendations or
before the government proffers its definite propositions.[141] It bear emphasis that
E.O. No. 3 seeks to elicit relevant advice, information, comments and
recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive


privilege in view of their unqualified disclosure of the official copies of the final
draft of the MOA-AD. By unconditionally complying with the Courts August 4,
2008 Resolution, without a prayer for the documents disclosure in camera, or
without a manifestation that it was complying therewith ex abundante ad cautelam.
Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a
State policy to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions [142] is welltaken. The LGC chapter on intergovernmental relations puts flesh into this avowed
policy:
Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution. [143] (Italics and
underscoring supplied)

In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and abovequoted provision of the LGU apply only to national programs or projects which are
to be implemented in a particular local community. Among the programs and
projects covered are those that are critical to the environment and human ecology
including those that may call for the eviction of a particular group of people
residing in the locality where these will be implemented.[145] The MOA-AD is one
peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people,[146] which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples


(ICCs/IPs), whose interests are represented herein by petitioner Lopez and are
adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right
to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.[147] The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,[148] which entails, among other things, the
observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does 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 recognition of the ancestral domain is the raison
detre of the MOA-AD, without which all other stipulations or consensus points
necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to necessary
changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework, such clause
is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to
public scrutiny and available always to public cognizance. This has to be so if the
country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.[149]
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. Respondents
have admitted as much in the oral arguments before this Court, and the MOA-AD
itself recognizes the need to amend the existing legal framework to render effective
at least some of its provisions. Respondents, nonetheless, counter that the MOAAD is free of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the

necessary changes to that framework are made. The validity of this argument will
be considered later. For now, the Court shall pass upon how
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 MOAAD, namely, the international lawconcept of association. Significantly, the MOAAD 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)

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.

Keitner and Reisman state that


[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x
x x[150] (Emphasis and underscoring supplied)

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,[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.[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.[153]
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 is not recognized under the
present Constitution

our

No province, city, or municipality, not even the ARMM, is recognized under


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
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,[154] namely, a permanent
population, a defined territory, agovernment, 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) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region. (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 Secretary[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 associativearrangement 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 nationalunity.
Besides being irreconcilable with the
Constitution,
the
MOA-AD
is
also inconsistent with prevailing statutory
law, among which are R.A. No. 9054[156] or
the Organic Act of the ARMM, and
the IPRA.[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 arenatives
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 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;
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.

xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution


states that the Philippines adopts the
generally
accepted
principles
of
international law as part of the law of the
land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of


Prisons,[158] held that the Universal Declaration of Human Rights is part of the law
of the land on account of which it ordered the release on bail of a detained alien of
Russian descent whose deportation order had not been executed even after two
years. Similarly, the Court inAgustin v. Edu[159] applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of peoples,
understood not merely as the entire population of a State but also a portion
thereof. In considering the question of whether the people of Quebec had a right to
unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE
RE SECESSION OF QUEBEC[160] had occasion to acknowledge that the right of a
people to self-determination is now so widely recognized in international
conventions that the principle has acquired a status beyond convention and is
considered a general principle of international law.
Among the conventions referred to are the International Covenant on Civil
and Political Rights[161] and the International Covenant on Economic, Social and
Cultural Rights[162] which state, in Article 1 of both covenants, that all peoples, by
virtue of the right of self-determination, freely determine their political status and
freely pursue their economic, social, and cultural development.
The peoples right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between

the right of internal and external self-determination. REFERENCE RE


SECESSION OF QUEBEC is again instructive:
(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right
to self-determination of a people is normally fulfilled
through internal self-determination a peoples pursuit of its political,
economic, social and cultural development within the framework of
an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of cases and,
even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the
emergence into any other political status freely determined by
a people constitute modes of implementing the right of selfdetermination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial integrity of
existing states. The various international documents that support the
existence of a peoples right to self-determination also contain parallel
statements supportive of the conclusion that the exercise of such a right
must be sufficiently limited to prevent threats to an existing states
territorial integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right
to external self-determination can arise, namely, where a people is under colonial
rule, is subject to foreign domination or exploitation outside a colonial context, and
less definitely but asserted by a number of commentators is blocked from the
meaningful exercise of its right to internal self-determination. The Court ultimately

held that the population of Quebec had no right to secession, as the same is not
under colonial rule or foreign domination, nor is it being deprived of the freedom
to make political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL
ASPECTS
OF
THE
AALAND ISLANDS
QUESTION.
[163]
There, Sweden presented to the Council of the League of Nations the question
of whether the inhabitants of the Aaland Islandsshould be authorized to determine
by plebiscite if the archipelago should remain under Finnish sovereignty or be
incorporated in the kingdom of Sweden. The Council, before resolving the
question, appointed an International Committee composed of three jurists to submit
an opinion on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the
right of disposing of national territory is essentially an attribute of
the sovereignty of every State. Positive International Law does not
recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other
States to claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction of
one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term State, but would also
endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held

by the State to which the national group wishes to be attached, nor by


any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to
a question which is left by international law to the domestic jurisdiction of Finland,
thereby applying the exception rather than the rule elucidated above. Its ground for
departing from the general rule, however, was a very narrow one, namely,
the Aaland Islands agitation originated at a time when Finland was undergoing
drastic political transformation. The internal situation of Finland was, according to
the Committee, so abnormal that, for a considerable time, the conditions required
for the formation of a sovereign State did not exist. In the midst of revolution,
anarchy, and civil war, the legitimacy of the Finnish national government was
disputed by a large section of the people, and it had, in fact, been chased from the
capital and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these
circumstances, Finland was not, during the relevant time period, a definitively
constituted sovereign state. The Committee, therefore, found that Finland did not
possess the right to withhold from a portion of its population the option to separate
itself a right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this term has
been used, in scholarship as well as international, regional, and state practices, to
refer to groups with distinct cultures, histories, and connections to land (spiritual
and otherwise) that have been forcibly incorporated into a larger governing society.
These groups are regarded as indigenous since they are the living descendants of
pre-invasion inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally distinctive groups that
find themselves engulfed by settler societies born of the forces of empire and
conquest.[164] Examples of groups who have been regarded as indigenous peoples
are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of peoples, indigenous peoples situated within states
do not have a general right to independence or secession from those states under

international law,[165] but they do have rights amounting to what was discussed
above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly
adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN
DRIP) throughGeneral Assembly Resolution 61/295. The vote was 143 to 4,
the Philippines being included among those in favor, and the four voting against
being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of
that right they freely determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous


peoples, has been understood as equivalent to internal self-determination. [166] The
extent of self-determination provided for in the UN DRIP is more particularly
defined in its subsequent articles, some of which are quoted hereunder:
Article 8

1. Indigenous peoples and individuals have the right not to be subjected


to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and
redress for:
(a) Any action which has the aim or effect of depriving them of
their integrity as distinct peoples, or of their cultural values
or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training
and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and
social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and
persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control
the lands, territories and resources that they possess by reason of
traditional ownership or other traditional occupation or use, as well
as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.

Article 30
1. Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in particular
through their representative institutions, prior to using their lands or
territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities
and strategies for the development or use of their lands or territories
and other resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in
order to obtain their free and informed consent prior to the approval
of any project affecting their lands or territories and other resources,
particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or


eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall
take the appropriate measures, including legislative measures, to achieve
the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law a question which
the Court need not definitively resolve here the obligations enumerated therein do
not strictly require the Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and powers provided for in the
MOA-AD. Even the more specific provisions of the UN DRIP are general in
scope, allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security force. Indeed,
Article 8 presupposes that it is the State which will provide protection for
indigenous peoples against acts like the forced dispossession of their lands a
function that is normally performed by police officers. If the protection of a right
so essential to indigenous peoples identity is acknowledged to be the responsibility
of the State, then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and
atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous
peoples to the lands, territories and resources which they have traditionallyowned,
occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the nearindependent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any


State, people, group or person any right to engage in any activity or
to perform any act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the validity
of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded. Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent with the
laws shall not take effect until these laws are amended. They cite paragraph 7 of
the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal
framework are effected. While the word Constitution is not mentioned in the
provision now under consideration or anywhere else in the MOA-AD, the
term legal framework is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere


act of incorporating in the MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the Central Government, have
already violated the Memorandum of Instructions From The President dated March
1, 2001, which states that the negotiations shall be conducted in accordance with x
x x the principles of the sovereignty and territorial integrity of the Republic of
the Philippines. (Emphasis supplied)Establishing an associative relationship
between the BJE and the Central Government is, for the reasons already discussed,
a preparation for independence, or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOAAD is defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel groups
to be appointed by the President as her official emissaries to conduct negotiations,
dialogues, and face-to-face discussions with rebel groups. These negotiating panels
are to report to the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not restricted by
E.O. No. 3 only to those options available under the laws as they presently
stand. One of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the Paths to Peace, is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional
amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No.
125,[167] states:
SECTION 4. The Six Paths to Peace. The components of the
comprehensive peace process comprise the processes known as the Paths
to Peace. These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a

coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This
component
involves
the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative
action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of


respondents to address, pursuant to this provision of E.O. No. 3, the root causes of
the armed conflict in Mindanao. The E.O. authorized them to think outside the box,
so to speak. Hence, they negotiated and were set on signing the MOA-AD that
included various social, economic, and political reforms which cannot, however,
all be accommodated within the present legal framework, and which thus would
require new legislation and constitutional amendments.
The inquiry on the legality of the suspensive clause, however, cannot stop here,
because it must be asked
whether the President herself may
exercise the power delegated to
the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree to pursue
reforms that would require new legislation and constitutional amendments, or
should the reforms be restricted only to those solutions which the present laws
allow? The answer to this question requires a discussion of
the extent of the Presidents power to
conduct peace negotiations.

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. InSanlakas v. Executive Secretary,[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.[169]

As the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a military
solution.Oftentimes, changes as far-reaching as a fundamental reconfiguration of

the nations constitutional structure is required. The observations of Dr. Kirsti


Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical
electoral assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of states emerging from
conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can
play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a
framework setting up the rules by which the new democracy will
operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal
status of peace agreements, observed that the typical way that peace agreements
establish or confirm mechanisms for demilitarization and demobilization is by
linking them to new constitutional structures addressing governance, elections,
and legal and human rights institutions.[171]

In the Philippine experience, the link between peace agreements and


constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions[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.
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
theTripoli 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.[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,[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 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,[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.[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:[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
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
[178]
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.

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.
[179]

The suspensive clause in the MOA-AD


viewed in light of the above-discussed
standards
Given the limited nature of the Presidents authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as recommendations
either to Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present Constitution and
laws shall come into force upon signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework. This stipulation does not
bear the marks of a suspensive condition defined in civil law as a future
and uncertain event but of a term. It is not a question of whether the necessary
changes to the legal framework will be effected, butwhen. That there is no
uncertainty being contemplated is plain from what follows, for the paragraph goes
on to state that the contemplated changes shall be with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained
in the Comprehensive Compact.
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect
the changes to the legal framework contemplated in the MOA-AD which changes
would include constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in
place, the MOA-AD itself would be
counted among the prior agreements
from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these consensus points and, notably, the deadline for
effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the Presidents authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the consensus points found
in the MOA-AD.Hence, it must be struck down as unconstitutional.
A comparison between the suspensive clause of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF and the
GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period
involving the putting up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development (SZOPAD) and the Southern
Philippines Council for Peace and Development (SPCPD), while Phase II covered
the establishment of the new regional autonomous government through amendment
or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties. To that
extent, they are similar to the provisions of the MOA-AD. There is, however, a
crucial difference between the two agreements. While the MOA-AD virtually
guarantees that the necessary changes to the legal framework will be put in
place, the GRP-MNLF final peace agreement states thus: Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to Congress for
incorporation in the amendatory or repealing law.
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution
in conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine

government to the international community that it would grant to the Bangsamoro


people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of other
nations were invited to witness its signing in Kuala Lumpur. These circumstances
readily lead one to surmise that the MOA-AD would have had the status of a
binding international agreement had it been signed. An examination of the
prevailing principles in international law, however, leads to the contrary
conclusion.
The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD
AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United Front
(RUF), a rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government of the Togolese
Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement was
entered into by the UN and that Government whereby the Special Court of Sierra
Leone was established. The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious violations
of international humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them in
pursuit of their objectives as members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of the

amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the
Lome Accord is not a treaty and that it can only create binding obligations and
rights between the parties in municipal law, not in international law. Hence, the
Special Court held, it is ineffective in depriving an international court like it of
jurisdiction.
37. In regard to the nature of a negotiated settlement of an internal armed
conflict it is easy to assume and to argue with some degree of
plausibility, as Defence counsel for the defendants seem to have
done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by
foreign heads of state or their representatives and
representatives of international organizations, means the
agreement of the parties is internationalized so as to create
obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or persons
or bodies under whose auspices the settlement took place but who
are not at all parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting parties or
incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of
the State and the RUF which has no status of statehood and is to
all intents and purposes a faction within the state. The noncontracting signatories of the Lom Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV
of the Agreement, this peace agreement is implemented with
integrity and in good faith by both parties. The moral
guarantors assumed no legal obligation. It is recalled that the UN
by its representative appended, presumably for avoidance of doubt,
an understanding of the extent of the agreement to be implemented
as not including certain international crimes.

42. An international agreement in the nature of a treaty must create


rights and obligations regulated by international law so that a
breach of its terms will be a breach determined under international
law which will also provide principle means of enforcement. The
Lom Agreement created neither rights nor obligations capable
of being regulated by international law. An agreement such as
the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the
Security Council may take note of. That, however, will not
convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a
threat to peace in the determination of the Security Council may
indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not
from the agreement, nor from the obligation imposed by it. Such
action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or more
warring States. The Lom Agreement cannot be characterised as
an international instrument. x x x (Emphasis, italics and
underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States
and international organizations not parties to the Agreement would not have
sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to
a unilateral declaration of the Philippine State, binding under international law, that
it would comply with all the stipulations stated therein, with the result that it would
have to amend its Constitution accordingly regardless of the true will of the
people. Cited as authority for this view is Australia v. France,[181] also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
Frances nuclear tests in the South Pacific. France refused to appear in the case, but
public statements from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series of atmospheric tests
would be its last, persuaded the ICJ to dismiss the case. [182] Those statements, the
ICJ held, amounted to a legal undertaking addressed to the international
community, which required no acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and
often are, very specific. When it is the intention of the State
making the declaration that it should become bound according
to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and
with an intent to be bound, even though not made within the context
of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from
other States, is required for the declaration to take effect, since such
a requirement would be inconsistent with the strictly unilateral
nature of the juridical act by which the pronouncement by the State
was made.
44. Of course, not all unilateral acts imply obligation; but a State
may choose to take up a certain position in relation to a
particular matter with the intention of being boundthe intention
is to be ascertained by interpretation of the act. When States
make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.
xxxx

51. In announcing that the 1974 series of atmospheric tests would be


the last, the French Government conveyed to the world at large,
including the Applicant, its intention effectively to terminate
these tests. It was bound to assume that other States might take
note of these statements and rely on their being effective. The
validity of these statements and their legal consequences must
be considered within the general framework of the security of
international intercourse, and the confidence and trust which are
so essential in the relations among States. It is from the actual
substance of these statements, and from the circumstances
attending their making, that the legal implications of the
unilateral act must be deduced. The objects of these statements
are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute
an
undertaking
possessing
legal
effect. The
Court
considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to
the international community to which his words were addressed. x x
x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the
following conditions are present: the statements were clearly addressed to the
international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later
case decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case
Concerning the Frontier Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign press agency,
that Maliwould abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending
between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis
President was not a unilateral act with legal implications. It clarified that its ruling

in the Nuclear Tests case rested on the peculiar circumstances surrounding the
French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the
act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric
testing by the French Government, that Government's
unilateral declarations had conveyed to the world at large,
including the Applicant, its intention effectively to terminate
these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para.
53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to
hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method: a
formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds
that there are no grounds to interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral act with legal
implications in regard to the present case. (Emphasis and
underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to
any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as witnesses or, in the case
of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in
addition to the parties to the conflict, the peace settlement is signed by

representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to
give legal effect to such commitments would not be detrimental to the security of
international intercourse to the trust and confidence essential in the relations
among States.
In one important respect, the circumstances surrounding the MOA-AD are
closer to that of Burkina Faso wherein, as already discussed, the Mali Presidents
statement was not held to be a binding unilateral declaration by the ICJ. As in that
case, there was also nothing to hinder the Philippine panel, had it really been its
intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in
the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented the
French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents almost consummated act
of guaranteeing amendmentsto the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution. 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.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.[184] Respondents, however, may not
preempt it in that decision.

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-in-intervention 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.
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 Court, however, finds that the prayers for mandamus have been rendered moot
in view of the respondents action in providing the Court and the petitioners with
the official copy of the final draft of the MOA-AD and its annexes.
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 self-executory 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 MOA-AD 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 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 GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO
LAW AND THE CONSTITUTION.
SO ORDERED.

G.R. No. 94010 December 2, 1991


FELIPE EVARDONE, petitioner,
vs.
COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL A.
NIVAL,respondents.
G.R. No. 95063 December 2, 1991
ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, petitioners,
vs.
COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.
Zosimo G. Alegre for Felipe Evardone.
Elmer C. Solidon for petitioners in G.R. No. 95063.

PADILLA, J.:p
These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by
the respondent Commission on Elections (COMELEC) dated 20 June 1990 which approved the
recommendation of the Election Registrar of Sulat, Eastern Samar to hold and conduct the signing of
the petition for recall of the incumbent Mayor of Sulat, Eastern Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a
restraining order and/or writ of preliminary injunction to restrain the holding of the signing of the
petition for recall on 14 July 1990.
G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No.
90-0660 of the respondent COMELEC nullifying the signing process held on 14 July 1990 in Sulat,
Eastern Samar for the recall of Mayor Evardone of said municipality and en banc Resolution No. 900777 denying petitioners' motion for reconsideration, on the basis of the temporary restraining order
issued by this Court on 12 July 1990 in G.R. No. 94010.
Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat,
Eastern Samar, having been elected to the position during the 1988 local elections. He assumed
office immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter
referred to as Apelado, et al.) filed a petition for the recall of Evardone with the Office of the Local
Election Registrar, Municipality of Sulat.
In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557,
approving the recommendation of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern

Samar, to hold on 14 July 1990 the signing of the petition for recall against incumbent Mayor
Evardone of the said Municipality.
On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for
immediate issuance of restraining order and/or writ of preliminary injunction, which was docketed as
G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective
immediately and continuing until further orders from the Court, ordering the respondents to cease
and desist from holding the signing of the petition for recall on 14 July 1990, pursuant to respondent
COMELEC's Resolution No. 2272 dated 23 May 1990.
On the same day (12 July 1990), the notice of TRO was received by the Central Office of the
respondent COMELEC. But it was only on 15 July 1990 that the field agent of the respondent
COMELEC received the telegraphic notice of the TROa day after the completion of the signing
process sought to be temporarily stopped by the TRO.
In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the
signing process held in Sulat, Eastern Samar for being violative of the order (the TRO) of this Court
in G.R. No. 94010. Apelado, et al., filed a motion for reconsideration and on 29 August 1990, the
respondent COMELEC denied said motion holding that:
. . . The critical date to consider is the service or notice of the Restraining Order on
12 July 1990 upon the principal i.e. the Commission on Election, and not upon its
agent in the field. 1
Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc Resolution No.
90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:


I. The COMELEC committed grave abuse of discretion in approving the
recommendation of the Election Registrar of Sulat, Eastern Samar to hold the signing
of the petition for recall without giving petitioner his day in court.
II. The COMELEC likewise committed grave abuse of discretion amounting to lack or
excess of jurisdiction in promulgating Resolution No. 2272 on May 22, 1990 which is
null and void for being unconstitutional. 2
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the
petition for recall held on 14 July 1990 has been rendered nugatory by the TRO issued by this court
in G.R. No. 94010 dated 12 July 1990 but received by the COMELEC field agent only on 15 July
1990.
The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272
promulgated by respondent COMELEC on 23 May 1990 by virtue of its powers under the

Constitution and Batas Pambansa Blg. 337 (Local Government Code). The resolution embodies the
general rules and regulations on the recall of elective provincial, city and municipal officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg.
337 in favor of one to be enacted by Congress. Said Section 3 provides:
Sec. 3. The Congress shall enact a local government code shall provide for a more
responsive and accountable local government structure instituted through a system
of decentralization with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers, responsibilities and
resources, and provide for the qualifications, election, appointment and removal,
term, salaries, powers and functions and duties local officials, and all other matters
relating to the organization operation of the local units.
Since there was, during the period material to this case, no local government code enacted
by Congressafter the effectivity of the 1987 Constitution nor any law for that matter on the
subject of recall of elected government officials, Evardone contends that there is no basis for
COMELEC Resolution No. 2272 and that the recall proceedings in the case at bar is
premature.
The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:
The constitutional provision does not refer only to a local government code which
is in futurum but also in esse. It merely sets forth the guidelines which Congress will
consider in amending the provisions of the present Local Government Code. Pending
the enactment of the amendatory law, the existing Local Government Code remains
operative. The adoption of the 1987 Constitution did not abrogate the provisions of
BP No. 337, unless a certain provision thereof is clearly irreconciliable with the
provisions of the 1987 Constitution. In this case, Sections 54 to 59 of Batas
Pambansa No. 337 are not inconsistent with the provisions of the Constitution.
Hence, they are operative. 3
We find the contention of the respondent COMELEC meritorious.
Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not
inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or revoked.
Republic Act No. 7160 providing for the Local Government Code of 1991, approved by the President
on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act.
But the Local Government Code of 1991 will take effect only on 1 January 1992 and therefore the
old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the
enactment of the new Local Government Code, the effectiveness of B.P. Blg. 337 was expressly
recognized in the proceedings of the 1986 Constitutional Commission. Thus
MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code
under the report of the Committee on Amendments and Transitory Provisions, the

former Local Government Code, which is Batas Pambansa Blg. 337 shall continue to
be effective until repealed by the Congress of the Philippines. 4
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective
officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the
process of and election on recall and in the exercise of such powers, promulgate the necessary rules
and regulations.
The Election Code contains no special provisions on the manner of conducting elections for the
recall of a local official. Any such election shall be conducted in the manner and under the rules on
special elections, unless otherwise provided by law or rule of the COMELEC. 5 Thus, pursuant to the rulemaking power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and
constitutional. Consequently, the respondent COMELEC had the authority to approve the petition for
recall and set the date for the signing of said petition.
The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the
signing process of the petition for recall held pursuant to Resolution No. 2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et
al., 6 this Court held:
. . . What is sought in this suit is to enjoin respondents particularly respondent
Commission from implementing Batas Pambansa Blg. 86, specifically "from
conducting, holding and undertaking the plebiscite provided for in said act." The
petition was filed on December 5, 1980. There was a plea for a restraining order, but
Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980 had
been issued as far as back as November 11, 1980. Due this delay in to this suit,
attributable solely to petitioners, there was no time even to consider such a plea. The
plebiscite was duly held. The certificate of canvass and proclamation of the result
disclosed that out of 2,409 total votes cast in such plebiscite, 2,368 votes were cast
in favor of the creation of the new municipality, which, according to the statute, will be
named municipality of Aguinaldo. There were only 40 votes cast against. As a result,
such municipality was created. There is no turning back the clock. The moot and
academic character of this petition is thus apparent.
In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado,
et al. on or about 21 February 1990 as evidenced by the Registry Return Receipt; yet, he was not
vigilant in following up and determining the outcome of such notice. Evardone alleges that it was
only on or about 3 July 1990 that he came to know about the Resolution of respondent COMELEC
setting the signing of the petition for recall on 14 July 1990. But despite his urgent prayer for the
issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.
Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place
just the same on the scheduled date through no fault of the respondent COMELEC and Apelado, et
al. The signing process was undertaken by the constituents of the Municipality of Sulat and its

Election Registrar in good faith and without knowledge of the TRO earlier issued by this Court. As
attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern
Samar or about 34% signed the petition for recall. As held in Parades vs.Executive Secretary 7 there is
no turning back the clock.

The right to recall is complementary to the right to elect or appoint. It is included in


the right of suffrage. It is based on the theory that the electorate must maintain a
direct and elastic control over public functionaries. It is also predicated upon the idea
that a public office is "burdened" with public interests and that the representatives of
the people holding public offices are simply agents or servants of the people with
definite powers and specific duties to perform and to follow if they wish to remain in
their respective offices. 8
Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor
is a political question. It belongs to the realm of politics where only the people are the judge. 9 "Loss of
confidence is the formal withdrawal by an electorate of their trust in a person's ability to discharge his office previously bestowed on him by
the same electorate. 10 The constituents have made a judgment and their will to recall the incumbent mayor (Evardone) has already been
ascertained and must be afforded the highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern Samar, for the recall
of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of
B.P. Blg, 337, which states:
Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.
...
(2) No recall shall take place within two years from the date of the official's
assumption of office or one year immediately preceding a regular local election.
The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or
more specifically, as provided for in Article XVIII, Sec. 5 on the second Monday of May,
1992. 11 Thus, to hold an election on recall approximately seven (7) months before the regular local election will be violative of the above
provisions of the applicable Local Government Code (B.P. Blg. 337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.
SO ORDERED.

[G.R. No. 112243. February 23, 1995.]


THE SECRETARY OF HEALTH, DR. ORLANDO PUA and DR. JOSE CABRERA, Petitioners, v. COURT
OF APPEALS, HON. ROGER A. DOMAGAS and FE SIBBALUCA, Respondents.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; WILL NOT LIE AS A SUBSTITUTE FOR AN
AVAILABLE OR LOST APPEAL; EXCEPTION; CASE AT BAR. In a long line of cases we held that the special
civil action for certiorari under Rule 65 of the Rules of Court will not lie as a substitute for an available or lost
appeal (Sy v. Romero, 214 SCRA 187 [1992]). Nevertheless, even when appeal is available and is the proper
remedy, this Court has allowed a writ of certiorari when the orders of the lower court were issued either in
excess of or without jurisdiction (PNB v. Florendo, 206 SCRA 582 [1992]). In the present case, the petition
for certiorari filed before respondent court was not filed as a mere substitute for appeal. The facts and
circumstances of this case warrant the filing of the petition for certiorari and prohibition. The lower court
issued a writ of execution of its March 25, 1992 decision. The motion to stay execution of the said decision
filed by petitioner Secretary of Health was denied. Likewise, the notice of appeal filed by the said petitioner
was also denied. In the same order, petitioner Dr. Jose Cabrera was found guilty of indirect contempt and a
penalty of three months imprisonment was imposed upon him for allegedly refusing to comply with the writ
of execution. Most importantly, petitioners question the jurisdiction of the lower court in enjoining the order
issued by the Secretary of Health preventively suspending and subsequently dismissing private respondent
and declaring that the said department does not have the jurisdiction to issue the said order.
2. ADMINISTRATIVE LAW; SECRETARY OF HEALTH; HAS ADMINISTRATIVE JURISDICTION OVER LOCAL
HEALTH OFFICER PRIOR TO THE EFFECTIVITY OF THE LOCAL GOVERNMENT CODE. On the merits,
petitioners main contention is that the court a quo erred in finding that the Secretary of Health has ceased
to have administrative jurisdiction over the person of private respondent in view of the enactment of the
Local Government Code of 1991 which took effect on January 1, 1992. The resolution of the main issue
raised by the petitioners calls for the determination of the date of effectivity of the Local Government Code
of 1991. The pertinent provision of the Local Government Code of 1991 provides: "Sec. 536. Effectivity
Clause. This Code shall take effect on January first, nineteen hundred ninety-two, unless otherwise

provided herein, after its complete publication in at least one (1) newspaper of general circulation." It is
explicit in the abovestated law that the Local Government Code of 1991 shall take effect on January 1, 1992.
It is an elementary principle of statutory construction that were the words and phrases of a statute are not
obscure and ambiguous, the meaning and intention of the legislature should be determined from the
language employed, and where there is no ambiguity in the words, there is no room for construction (Allarde
v. Commission on Audit, 218 SCRA 227 [1993]). Furthermore, it is well-settled that jurisdiction is
determined by the statute in force at the time of the commencement of the action (Philippine Singapore
Ports Corporation v. NLRC, 218 SCRA 77 [1993]). In the case at bar, respondent Fe Sibbaluca was
administratively charged before petitioner department in 1991. The case was docketed as Administrative
Case No. 000023 S. 1991 and the suspension order was issued by petitioner Secretary of Health on
December 17, 1991. At the time of the commencement of the administrative action, the operative laws are
the Administrative Code of 1987 and Executive Order No. 119. Under the said laws, the Secretary of Health
exercises control, direction and supervision over his subordinates, which include private Respondent.
Consequently, since jurisdiction has been acquired by the Secretary of Health over the person of private
respondent before the effectivity of the Local Government Code on January 1, 1992, it continues until the
final disposition of the administrative case. This Court already ruled in a number of cases that jurisdiction
once acquired by a court over a case remains with it until the full termination of the case, unless a law
provides the contrary (Bueno Industrial and Development Corporation v. Enage, 104 SCRA 600 [1981]). At
this juncture, it bears stressing that private respondent, a civil servant, cannot use the courts of justice as a
shield to prevent the implementation of administrative sanctions of executive agencies against erring public
servants.

DECISION

BIDIN, J.:

Petitioners seek the reversal of respondent courts decision dated July 21, 1993 dismissing petitioners
petition for certiorari and prohibition in CA-G.R. No. 28361 assailing the decision and orders of respondent
Presiding Judge of the Regional Trial Court Branch 1 of Tuguegarao, Cagayan restraining petitioners from
enforcing the order of preventive suspension issued against respondent Fe Sibbaluca, former Administrative
Officer of the Provincial Health Office of Cagayan.
chanroblesvirtuallawlibrary

The antecedent facts of the case as found by respondent court are as follows:

jgc:chanrobles.com .ph

"This petition for certiorari and prohibition filed by petitioners stemmed from the administrative complaint
filed against private respondent Fe Sibbaluca, the Administrative Officer III of the Provincial Health Officer of
Cagayan, for grave misconduct, dishonesty, etc. The case was docketed as Administrative Case No. 000023
S. 1991 of the Department of Health, Manila.
"As a consequence of the administrative case, private respondent was placed under preventive suspension
for ninety (90) day per order dated December 17, 1991, issued by herein petitioner Secretary of Health.
"Private respondent sought the lifting of her suspension thru a motion dated January 8, 1992.
"Pending resolution of her said motion, private respondent instituted an action for prohibition, mandamus,
and injunction with a prayer for a temporary restraining order and a writ of preliminary injunction before the
Regional Trial Court (RTC) of Tuguegarao (Branch 1), docketed as Civil Case No. 4379 and 4397, seeking the
nullification of the order of preventive suspension and of the entire administrative proceedings. Her action is
anchored on her contention that when the New Local Government Code took effect on January 1, 1992, the
Secretary of Health had lost his disciplinary power and authority over her, considering that such power to
discipline the personnel of the Provincial Health Officer is now vested in the Provincial Governor.
"Finding merit to the ancillary remedy sought by private respondent, the Regional Trial Court, thru the
herein respondent Judge, issued a temporary restraining order on January 15, 1992, restraining the
Secretary of Health and his representatives from enforcing the preventive suspension order from conducting
further proceedings in the administrative case against private Respondent.
"On February 3, 1992, the Secretary of Health filed an omnibus motion to dismiss private respondents

action and to quash the temporary restraining order, with opposition to the issuance of a preliminary
injunction, contending inter alia that private respondent had failed to exhaust administrative remedies and
that the New Local Government Code did not divest the Secretary of Health of his disciplinary jurisdiction
over the private Respondent.
"During the hearing of the omnibus motion as well as the application for a preliminary injunction, the
counsel for the Secretary of Health manifested that they are not participating in the proceedings. Thus,
private respondent presented her testimony, who was then cross-examined by the counsel for the other two
petitioners herein, Dr. Orlando Pua, the Director of the Regional Health Office No. 2, and Dr. Jose Cabrera,
the Officer-in-Charge of the Provincial Health Office of Cagayan.
"After the hearing, the parties were directed to submit their respective memoranda.
"In a decision dated March 25, 1992, the respondent Judge rendered judgment in favor of private
respondent and against petitioners, the pertinent portion of which reads:
jgc:chanrobles.com .ph

"The Court is aware that ordinarily it should not interfere with in the prosecution of administrative complaint
as in the case at bar based on the doctrine of exhaustion of administrative remedies and forum shopping.
Considering, however, that with the enactment of the Local Government Code of 1991 which took effect on
January 1, 1992, the provincial health board headed by the governor is empowered to create committees
which shall advise local health agencies on matters of grievance and complaints, personal discipline, it is
clear that the Secretary of Health ceases to have jurisdiction over the person of the petitioner and
consequently the power and authority to issue the order of suspension (Sec. 102 of the Local Government
Code of 1991).
chanroble s law library : red

"WHEREFORE, judgment is hereby rendered in favor of the petitioner and against the respondents
restraining immediately the latter from enforcing the order of preventive suspension dated December 17,
1991 until the administrative case is investigated and resolved by the provincial health board.
For insufficiency of evidence the contempt charge is hereby dismissed.
SO ORDERED. (p. 39, Rollo)
"The private respondent, in a motion dated April 3, 1992, sought a clarification of the decision. She also
moved for the execution of the same. Acting on the motion, the respondent Judge issued an order dated
April 14, 1992, ordering the issuance of a writ of execution "to implement the decision of the Court dated
March 25, 1992." The order further states: On the motion for clarification, considering the finding of this
Court that the Secretary of Health ceases to have jurisdiction to discipline the petitioner (now private
respondent), necessarily, the order of suspension and all other orders emanating thereafter are null and void
and of no further effect (Annex B, Petition; p. 40, Rollo).
"Copies of the decision dated March 25, 1992 and the order dated April 14, 1992 were received by
petitioners on April 10, 1992 and April 15, 1992, respectively.
"On April 27, 1992, petitioners filed a motion for reconsideration of the March 25, 1992 decision and of the
April 14, 1992 order, insisting that the Secretary of Health has jurisdiction over the administrative case.
Petitioners also contended, among other things, that respondent Judge has no jurisdiction to nullify all
orders issued by the Secretary of Health, they being of equal rank.
"Petitioners motion for reconsideration was denied in an order dated May 28, 1992 (Annex A, Petition; p.
58, Rollo).
"On the same date of May 28, 1992, the Secretary of Health filed a Notice of Appeal with the court a quo,
giving notice that he is appealing the decision dated March 25, 1992 to the Court of Appeals on both
questions of fact and law (pp. 13 and 103, Rollo).
chanrobles virtual lawlibrary

"On June 17, 1992, the Secretary of Health filed another motion to stay the execution of the assailed
decision.
"Both the notice of appeal and the motion to stay execution were denied upon the ground that the notice of
appeal was filed out of time and that the assailed decision had already become final and executory. The
denial was contained in a decision dated June 26, 1992 which convicted co-petitioner Dr. Jose Cabrera of

indirect contempt of court for refusing to comply with the writ of execution (Annex C, Petition; p. 41, Rollo).
"Hence, this petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court, assailing
dated March 25, 1992, the order dated April 14, 1992 and the decision dated June 26, 1992." (Rollo, pp. 3235)
Respondent court dismissed the petition filed by petitioners and ruled that an ordinary appeal by mere
notice of appeal is the plain and adequate remedy of petitioners against the three assailed processes of the
lower court (Rollo, p. 35). The Motion for Reconsideration filed by petitioners was also denied (Rollo, p. 54).
The petitioners raise the following errors allegedly committed by the Court of Appeals, to wit:

chanrob1es virtual 1aw library

I
"RESPONDENT COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO THE SPECIAL CIVIL ACTION OF
CERTIORARI AND PROHIBITION FILED BY PETITIONERS DOCKETED AS CA-G.R. SP NO 28361.
chanroble s lawlibrary : rednad

II
"RESPONDENT COURT OF APPEALS ERRED IN NOT TOUCHING ON THE MERITS OF THE PETITION." (Rollo,
pp. 17-18)
We find merit in this petition.
At the outset, it should be noted that petitioners notice of appeal was filed out of time. Petitioners then filed
a petition for certiorari and prohibition before respondent court.
Respondent court, believing that the said petition was made as a substitute for the lost remedy of appeal,
held that where the proper remedy is appeal, the action for certiorari will not be entertained. Thus, the
petition for certiorari filed by petitioners was dismissed.
chanrobles lawlibrary : rednad

In a long line of cases we held that the special civil action for certiorari under Rule 65 of the Rules of Court
will not lie as a substitute for an available or lost appeal (Sy v. Romero, 214 SCRA 187 [1992]).
Nevertheless, even when appeal is available and is the proper remedy, this Court has allowed a writ
of certiorari when the orders of the lower court were issued either in excess of or without jurisdiction (PNB v.
Florendo, 206 SCRA 582 [1992)].
In the present case, the petition for certiorari filed before respondent court was not filed as a mere
substitute for appeal. The facts and circumstances of this case warrant the filing of the petition
forcertiorari and prohibition. The lower court issued a writ of execution of its March 25, 1992 decision. The
motion to stay execution of the said decision filed by petitioner Secretary of Health was denied. Likewise,
the notice of appeal filed by the said petitioner was also denied. In the same order, petitioner Dr. Jose
Cabrera was found guilty of indirect contempt and a penalty of three months imprisonment was imposed
upon him for allegedly refusing to comply with the writ of execution.
chanroblesvirtuallawlibrary

Most importantly, petitioners question the jurisdiction of the lower court in enjoining the order issued by the
Secretary of Health preventively suspending and subsequently dismissing private respondent and declaring
that the said department does not have the jurisdiction to issue the said order.
On the merits, petitioners main contention is that the court a quo erred in finding that the Secretary of
Health has ceased to have administrative jurisdiction over the person of private respondent in view of the
enactment of the Local Government Code of 1991 which took effect on January 1, 1992 (Rollo, p. 19).
The resolution of the main issue raised by the petitioners calls for the determination of the date of effectivity
of the Local Government Code of 1991.
The pertinent provision of the Local Government Code of 1991 provides:

jgc:chanrobles.com .ph

"Sec. 536. Effectivity Clause. This Code shall take effect on January first, nineteen hundred ninety-two,
unless otherwise provided herein, after its complete publication in at least one (1) newspaper of general

circulation." (Emphasis supplied)


It is explicit in the abovestated law that the Local Government Code of 1991 shall take effect on January 1,
1992. It is an elementary principle of statutory construction that where the words and phrases of a statute
are not obscure and ambiguous, the meaning and intention of the legislature should be determined from the
language employed, and where there is no ambiguity in the words, there is no room for construction (Allarde
v. Commission on Audit, 218 SCRA 227 [1993]).
Furthermore, it is well-settled that jurisdiction is determined by the statute in force at the time of the
commencement of the action (Philippine Singapore Ports Corporation v. NLRC, 218 SCRA 77 [1993]).

chanroble svirtuallawlibrary

In the case at bar, respondent Fe Sibbaluca was administratively charged before petitioner department in
1991. The case was docketed as Administrative Case No. 000023 S.1991 and the suspension order was
issued by petitioner Secretary of Health on December 17, 1991. At the time of the commencement of the
administrative action, the operative laws are the Administrative Code of 1987 and Executive Order No. 119.
Under the said laws, the Secretary of Health exercises control, direction and supervision over his
subordinates, which include private Respondent. Consequently, since jurisdiction has been acquired by the
Secretary of Health over the person of private respondent before the effectivity of the Local Government
Code on January 1, 1992, it continues until the final disposition of the administrative case.
chanroble s virtualawlibrary chanrobles.com:chanrobles.com.ph

This Court already ruled in a number of cases that jurisdiction once acquired by a court over a case remains
with it until the full termination of the case, unless a law provides the contrary (Bueno Industrial and
Development Corporation v. Enage, 104 SCRA 600 [1981]).
chanroblesvirtuallawlibrary

At this juncture, it bears stressing that private respondent, a civil servant cannot use the courts of justice as
a shield to prevent the implementation of administrative sanctions of executive agencies against erring
public servants.
WHEREFORE, respondent courts decision is hereby REVERSED and SET ASIDE. The challenged decision and
orders of the Regional Trial Court. Branch I, of Tuguegarao, Cagayan are hereby ANNULLED and SET ASIDE.
SO ORDERED.