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EN BANC

[G.R. No. 132527. July 29, 2005]

COCONUT OIL REFINERS ASSOCIATION, INC. represented by


its President, JESUS L. ARRANZA, PHILIPPINE
ASSOCIATION OF MEAT PROCESSORS, INC. (PAMPI),
represented by its Secretary, ROMEO G. HIDALGO,
FEDERATION OF FREE FARMERS (FFF), represented by its
President, JEREMIAS U. MONTEMAYOR, and BUKLURAN
NG MANGGAGAWANG PILIPINO (BMP), represented by its
Chairperson, FELIMON C. LAGMAN, petitioners, vs. HON.
RUBEN TORRES, in his capacity as Executive Secretary;
BASES CONVERSION AND DEVELOPMENT AUTHORITY,
CLARK DEVELOPMENT CORPORATION, SUBIC BAY
METROPOLITAN AUTHORITY, 88 MART DUTY FREE,
FREEPORT TRADERS, PX CLUB, AMERICAN HARDWARE,
ROYAL DUTY FREE SHOPS, INC., DFS SPORTS, ASIA
PACIFIC, MCI DUTY FREE DISTRIBUTOR CORP. (formerly
MCI RESOURCES, CORP.), PARK & SHOP, DUTY FREE
COMMODITIES, L. FURNISHING, SHAMBURGH, SUBIC
DFS, ARGAN TRADING CORP., ASIPINE CORP., BEST BUY,
INC., PX CLUB, CLARK TRADING, DEMAGUS TRADING
CORP., D.F.S. SPORTS UNLIMITED, INC., DUTY FREE
FIRST SUPERSTORE, INC., FREEPORT, JC MALL DUTY
FREE INC. (formerly 88 Mart [Clark] Duty Free Corp.), LILLY
HILL CORP., MARSHALL, PUREGOLD DUTY FREE, INC.,
ROYAL DFS and ZAXXON PHILIPPINES, INC., respondents.
DECISION
AZCUNA, J.:

This is a Petition for Prohibition and Injunction seeking to enjoin and prohibit
the Executive Branch, through the public respondents Ruben Torres in his
capacity as Executive Secretary, the Bases Conversion Development Authority
(BCDA), the Clark Development Corporation (CDC) and the Subic Bay
Metropolitan Authority (SBMA), from allowing, and the private respondents from
continuing with, the operation of tax and duty-free shops located at the Subic
Special Economic Zone (SSEZ) and the Clark Special Economic Zone (CSEZ),
and to declare the following issuances as unconstitutional, illegal, and void:
1. Section 5 of Executive Order No. 80, [1] dated April 3, 1993, regarding the
CSEZ.
2. Executive Order No. 97-A, dated June 19, 1993, pertaining to the SSEZ.
3. Section 4 of BCDA Board Resolution No. 93-05-034,[2] dated May 18, 1993,
pertaining to the CSEZ.

Petitioners contend that the aforecited issuances are unconstitutional and


void as they constitute executive lawmaking, and that they are contrary to
Republic Act No. 7227 and in violation of the Constitution, particularly Section 1,
Article III (equal protection clause), Section 19, Article XII (prohibition of unfair
competition and combinations in restraint of trade), and Section 12, Article XII
(preferential use of Filipino labor, domestic materials and locally produced
goods).
[3]

The facts are as follows:


On March 13, 1992, Republic Act No. 7227 was enacted, providing for,
among other things, the sound and balanced conversion of the Clark and Subic
military reservations and their extensions into alternative productive uses in the
form of special economic zones in order to promote the economic and social
development of Central Luzon in particular and the country in general. Among the
salient provisions are as follows:

SECTION 12. Subic Special Economic Zone.


...
The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the
Subic Special Economic Zone shall be developed into a self-sustaining,
industrial, commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments;
(b) The Subic Special Economic Zone shall be operated and managed as a
separate customs territory ensuring free flow or movement of goods and capital
within, into and exported out of the Subic Special Economic Zone, as well as
provide incentives such as tax and duty-free importations of raw materials,
capital and equipment. However, exportation or removal of goods from the
territory of the Subic Special Economic Zone to the other parts of the
Philippine territory shall be subject to customs duties and taxes under the
Customs and Tariff Code and other relevant tax laws of the Philippines;
[4]

(c) The provision of existing laws, rules and regulations to the contrary
notwithstanding, no taxes, local and national, shall be imposed within the Subic
Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross
income earned by all businesses and enterprises within the Subic Special
Ecoomic Zone shall be remitted to the National Government, one percent (1%)
each to the local government units affected by the declaration of the zone in
proportion to their population area, and other factors. In addition, there is
hereby established a development fund of one percent (1%) of the gross income
earned by all businesses and enterprises within the Subic Special Economic
Zone to be utilized for the development of municipalities outside the City of
Olangapo and the Municipality of Subic, and other municipalities contiguous to
the base areas.
...

SECTION 15. Clark and Other Special Economic Zones. Subject to the
concurrence by resolution of the local government units directly affected, the
President is hereby authorized to create by executive proclamation a Special
Economic Zone covering the lands occupied by the Clark military reservations
and its contiguous extensions as embraced, covered and defined by the 1947
Military Bases Agreement between the Philippines and the United States of
America, as amended, located within the territorial jurisdiction of Angeles City,
Municipalities of Mabalacat and Porac, Province of Pampanga and the
Municipality of Capas, Province of Tarlac, in accordance with the policies as
herein provided insofar as applicable to the Clark military reservations.
The governing body of the Clark Special Economic Zone shall likewise be
established by executive proclamation with such powers and functions
exercised by the Export Processing Zone Authority pursuant to Presidential
Decree No. 66 as amended.
The policies to govern and regulate the Clark Special Economic Zone shall be
determined upon consultation with the inhabitants of the local government units
directly affected which shall be conducted within six (6) months upon approval
of this Act.
Similarly, subject to the concurrence by resolution of the local government
units directly affected, the President shall create other Special Economic Zones,
in the base areas of Wallace Air Station in San Fernando, La Union (excluding
areas designated for communications, advance warning and radar requirements
of the Philippine Air Force to be determined by the Conversion Authority) and
Camp John Hay in the City of Baguio.
Upon recommendation of the Conversion Authority, the President is likewise
authorized to create Special Economic Zones covering the Municipalities of
Morong, Hermosa, Dinalupihan, Castillejos and San Marcelino.
On April 3, 1993, President Fidel V. Ramos issued Executive Order No. 80,
which declared, among others, that Clark shall have all the applicable incentives
granted to the Subic Special Economic and Free Port Zone under Republic Act
No. 7227. The pertinent provision assailed therein is as follows:

SECTION 5. Investments Climate in the CSEZ. Pursuant to Section 5(m) and


Section 15 of RA 7227, the BCDA shall promulgate all necessary policies, rules
and regulations governing the CSEZ, including investment incentives, in
consultation with the local government units and pertinent government
departments for implementation by the CDC.
Among others, the CSEZ shall have all the applicable incentives in the Subic
Special Economic and Free Port Zone under RA 7227 and those applicable
incentives granted in the Export Processing Zones, the Omnibus Investments
Code of 1987, the Foreign Investments Act of 1991 and new investments laws
which may hereinafter be enacted.
The CSEZ Main Zone covering the Clark Air Base proper shall have all the
aforecited investment incentives, while the CSEZ Sub-Zone covering the rest

of the CSEZ shall have limited incentives. The full incentives in the Clark SEZ
Main Zone and the limited incentives in the Clark SEZ Sub-Zone shall be
determined by the BCDA.
Pursuant to the directive under Executive Order No. 80, the BCDA passed
Board Resolution No. 93-05-034 on May 18, 1993, allowing the tax and duty-free
sale at retail of consumer goods imported via Clark for consumption outside the
CSEZ. The assailed provisions of said resolution read, as follows:

Section 4. SPECIFIC INCENTIVES IN THE CSEZ MAIN ZONE. The CSEZregistered enterprises/businesses shall be entitled to all the incentives available
under R.A. No. 7227, E.O. No. 226 and R.A. No. 7042 which shall include, but
not limited to, the following:
I. As in Subic Economic and Free Port Zone:
A. Customs:
...
4. Tax and duty-free purchase and consumption of goods/articles
(duty free shopping) within the CSEZ Main Zone.
5. For individuals, duty-free consumer goods may be brought out of
the CSEZ Main Zone into the Philippine Customs territory but
not to exceed US$200.00 per month per CDC-registered
person, similar to the limits imposed in the Subic SEZ. This
privilege shall be enjoyed only once a month. Any excess shall
be levied taxes and duties by the Bureau of Customs.
On June 10, 1993, the President issued Executive Order No. 97, Clarifying
the Tax and Duty Free Incentive Within the Subic Special Economic Zone
Pursuant to R.A. No. 7227. Said issuance in part states, thus:

SECTION 1. On Import Taxes and Duties Tax and duty-free importations shall
apply only to raw materials, capital goods and equipment brought in by
business enterprises into the SSEZ. Except for these items, importations of
other goods into the SSEZ, whether by business enterprises or resident
individuals, are subject to taxes and duties under relevant Philippine laws.
The exportation or removal of tax and duty-free goods from the territory of the
SSEZ to other parts of the Philippine territory shall be subject to duties and
taxes under relevant Philippine laws.
Nine days after, on June 19, 1993, Executive Order No. 97-A was issued,
Further Clarifying the Tax and Duty-Free Privilege Within the Subic Special
Economic and Free Port Zone. The relevant provisions read, as follows:

SECTION 1. The following guidelines shall govern the tax and duty-free
privilege within the Secured Area of the Subic Special Economic and Free Port
Zone:

1.1 The Secured Area consisting of the presently fenced-in former Subic Naval
Base shall be the only completely tax and duty-free area in the SSEFPZ.
Business enterprises and individuals (Filipinos and foreigners) residing within
the Secured Area are free to import raw materials, capital goods, equipment,
and consumer items tax and duty-free. Consumption items, however, must be
consumed within the Secured Area. Removal of raw materials, capital goods,
equipment and consumer items out of the Secured Area for sale to non-SSEFPZ
registered enterprises shall be subject to the usual taxes and duties, except as
may be provided herein.
1.2. Residents of the SSEFPZ living outside the Secured Area can enter the
Secured Area and consume any quantity of consumption items in hotels and
restaurants within the Secured Area. However, these residents can purchase and
bring out of the Secured Area to other parts of the Philippine territory consumer
items worth not exceeding US$100 per month per person. Only residents age
15 and over are entitled to this privilege.
1.3. Filipinos not residing within the SSEFPZ can enter the Secured Area and
consume any quantity of consumption items in hotels and restaurants within the
Secured Area. However, they can purchase and bring out [of] the Secured Area
to other parts of the Philippine territory consumer items worth not exceeding
US$200 per year per person. Only Filipinos age 15 and over are entitled to this
privilege.
Petitioners assail the $100 monthly and $200 yearly tax-free shopping
privileges granted by the aforecited provisions respectively to SSEZ residents
living outside the Secured Area of the SSEZ and to Filipinos aged 15 and over
residing outside the SSEZ.
On February 23, 1998, petitioners thus filed the instant petition, seeking the
declaration of nullity of the assailed issuances on the following grounds:
I.

EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO.


80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034
ARE NULL AND VOID [FOR] BEING AN EXERCISE OF EXECUTIVE
LAWMAKING.
II.

EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO.


80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034
ARE UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE AND THE PROHIBITION AGAINST UNFAIR
COMPETITION AND PRACTICES IN RESTRAINT OF TRADE.
III.

EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO.


80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034
ARE NULL AND VOID [FOR] BEING VIOLATIVE OF REPUBLIC ACT
NO. 7227.

IV.

THE CONTINUED IMPLEMENTATION OF THE CHALLENGED


ISSUANCES IF NOT RESTRAINED WILL CONTINUE TO CAUSE
PETITIONERS TO SUFFER GRAVE AND IRREPARABLE INJURY.

[5]

In their Comments, respondents point out procedural issues, alleging lack of


petitioners legal standing, the unreasonable delay in the filing of the petition,
laches, and the propriety of the remedy of prohibition.
Anent the claim on lack of legal standing, respondents argue that petitioners,
being mere suppliers of the local retailers operating outside the special economic
zones, do not stand to suffer direct injury in the enforcement of the issuances
being assailed herein. Assuming this is true, this Court has nevertheless held that
in cases of paramount importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of
judicial review.
[6]

In the same vein, with respect to the other alleged procedural flaws, even
assuming the existence of such defects, this Court, in the exercise of its
discretion, brushes aside these technicalities and takes cognizance of the
petition considering the importance to the public of the present case and in
keeping with the duty to determine whether the other branches of the
government have kept themselves within the limits of the Constitution.
[7]

Now, on the constitutional arguments raised:


As this Court enters upon the task of passing on the validity of an act of a coequal and coordinate branch of the Government, it bears emphasis that deeply
ingrained in our jurisprudence is the time-honored principle that a statute is
presumed to be valid. This presumption is rooted in the doctrine of separation of
powers which enjoins upon the three coordinate departments of the Government
a becoming courtesy for each others acts. Hence, to doubt is to sustain. The
theory is that before the act was done or the law was enacted, earnest studies
were made by Congress, or the President, or both, to insure that the Constitution
would not be breached. This Court, however, may declare a law, or portions
thereof, unconstitutional where a petitioner has shown a clear and unequivocal
breach of the Constitution, not merely a doubtful or argumentative one. In other
words, before a statute or a portion thereof may be declared unconstitutional, it
must be shown that the statute or issuance violates the Constitution clearly,
palpably and plainly, and in such a manner as to leave no doubt or hesitation in
the mind of the Court.
[8]

[9]

[10]

[11]

[12]

The Issue on Executive Legislation


Petitioners claim that the assailed issuances (Executive Order No. 97-A;
Section 5 of Executive Order No. 80; and Section 4 of BCDA Board Resolution
No. 93-05-034) constitute executive legislation, in violation of the rule on
separation of powers. Petitioners argue that the Executive Department, by
allowing through the questioned issuances the setting up of tax and duty-free
shops and the removal of consumer goods and items from the zones without
payment of corresponding duties and taxes, arbitrarily provided additional
exemptions to the limitations imposed by Republic Act No. 7227, which
limitations petitioners identify as follows:

(1) [Republic Act No. 7227] allowed only tax and duty-free importation of raw
materials, capital and equipment.
(2) It provides that any exportation or removal of goods from the territory of the
Subic Special Economic Zone to other parts of the Philippine territory shall
be subject to customs duties and taxes under the Customs and Tariff Code
and other relevant tax laws of the Philippines.

Anent the first alleged limitation, petitioners contend that the wording of
Republic Act No. 7227 clearly limits the grant of tax incentives to the importation
of raw materials, capital and equipment only. Hence, they claim that the assailed
issuances constitute executive legislation for invalidly granting tax incentives in
the importation of consumer goods such as those being sold in the duty-free
shops, in violation of the letter and intent of Republic Act No. 7227.
A careful reading of Section 12 of Republic Act No. 7227, which pertains to
the SSEZ, would show that it does not restrict the duty-free importation only to
raw materials, capital and equipment. Section 12 of the cited law is partly
reproduced, as follows:

SECTION 12. Subic Special Economic Zone.


...
The abovementioned zone shall be subject to the following policies:
...
(b) The Subic Special Economic Zone shall be operated and managed as a
separate customs territory ensuring free flow or movement of goods and
capital within, into and exported out of the Subic Special Economic Zone,
as well as provide incentives such as tax and duty-free importations of raw
materials, capital and equipment. However, exportation or removal of
goods from the territory of the Subic Special Economic Zone to the other
parts of the Philippine territory shall be subject to customs duties and taxes
under the Customs and Tariff Code and other relevant tax laws of the
Philippines.[13]

While it is true that Section 12 (b) of Republic Act No. 7227 mentions only
raw materials, capital and equipment, this does not necessarily mean that the tax
and duty-free buying privilege is limited to these types of articles to the exclusion
of consumer goods. It must be remembered that in construing statutes, the
proper course is to start out and follow the true intent of the Legislature and to
adopt that sense which harmonizes best with the context and promotes in the
fullest manner the policy and objects of the Legislature.
[14]

In the present case, there appears to be no logic in following the narrow


interpretation petitioners urge. To limit the tax-free importation privilege of
enterprises located inside the special economic zone only to raw materials,
capital and equipment clearly runs counter to the intention of the Legislature to
create a free port where the free flow of goods or capital within, into, and out of
the zones is insured.
The phrase tax and duty-free importations of raw materials, capital and
equipment was merely cited as an example of incentives that may be given to
entities operating within the zone. Public respondent SBMA correctly argued that
the maxim expressio unius est exclusio alterius, on which petitioners impliedly
rely to support their restrictive interpretation, does not apply when words are
mentioned by way of example. It is obvious from the wording of Republic Act
[15]

No. 7227, particularly the use of the phrase such as, that the enumeration only
meant to illustrate incentives that the SSEZ is authorized to grant, in line with its
being a free port zone.
Furthermore, said legal maxim should be applied only as a means of
discovering legislative intent which is not otherwise manifest, and should not be
permitted to defeat the plainly indicated purpose of the Legislature.
[16]

The records of the Senate containing the discussion of the concept of special
economic zone in Section 12 (a) of Republic Act No. 7227 show the legislative
intent that consumer goods entering the SSEZ which satisfy the needs of the
zone and are consumed there are not subject to duties and taxes in
accordance with Philippine laws, thus:

Senator Guingona. . . . The concept of Special Economic Zone is one that


really includes the concept of a free port, but it is broader. While a free port is
necessarily included in the Special Economic Zone, the reverse is not true that a
free port would include a special economic zone.
Special Economic Zone, Mr. President, would include not only the incoming
and outgoing of vessels, duty-free and tax-free, but it would involve also
tourism, servicing, financing and all the appurtenances of an investment center.
So, that is the concept, Mr. President. It is broader. It includes the free port
concept and would cater to the greater needs of Olangapo City, Subic Bay and
the surrounding municipalities.
Senator Enrile. May I know then if a factory located within the jurisdiction of
Morong, Bataan that was originally a part of the Subic Naval reservation, be
entitled to a free port treatment or just a special economic zone treatment?
Senator Guingona. As far as the goods required for manufacture is concerned,
Mr. President, it would have privileges of duty-free and tax-free. But in
addition, the Special Economic Zone could embrace the needs of tourism,
could embrace the needs of servicing, could embrace the needs of financing
and other investment aspects.
Senator Enrile. When a hotel is constructed, Mr. President, in this
geographical unit which we call a special economic zone, will the goods
entering to be consumed by the customers or guests of the hotel be subject to
duties?
Senator Guingona. That is the concept that we are crafting, Mr. President.
Senator Enrile. No. I am asking whether those goods will be duty-free,
because it is constructed within a free port.
Senator Guingona. For as long as it services the needs of the Special
Economic Zone, yes.
Senator Enrile. For as long as the goods remain within the zone, whether we
call it an economic zone or a free port, for as long as we say in this law that all
goods entering this particular territory will be duty-free and tax-free, for as
long as they remain there, consumed there or reexported or destroyed in that

place, then they are not subject to the duties and taxes in accordance with the
laws of the Philippines?
Senator Guingona. Yes.

[17]

Petitioners rely on Committee Report No. 1206 submitted by the Ad Hoc


Oversight Committee on Bases Conversion on June 26, 1995. Petitioners put
emphasis on the reports finding that the setting up of duty-free stores never
figured in the minds of the authors of Republic Act No. 7227 in attracting foreign
investors to the former military baselands. They maintain that said law aimed to
attract manufacturing and service enterprises that will employ the dislocated
former military base workers, but not investors who would buy consumer goods
from duty-free stores.
The Court is not persuaded. Indeed, it is well-established that opinions
expressed in the debates and proceedings of the Legislature, steps taken in the
enactment of a law, or the history of the passage of the law through the
Legislature, may be resorted to as aids in the interpretation of a statute with a
doubtful meaning. Petitioners posture, however, overlooks the fact that the 1995
Committee Report they are referring to came into being well after the enactment
of Republic Act No. 7227 in 1993. Hence, as pointed out by respondent
Executive Secretary Torres, the aforementioned report cannot be said to form
part of Republic Act No. 7227s legislative history.
[18]

Section 12 of Republic Act No. 7227, provides in part, thus:

SEC. 12. Subic Special Economic Zone. -- . . .


The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the
Constitution and the pertinent provisions of the Local Government Code, the
Subic Special Economic Zone shall be developed into a self-sustaining,
industrial, commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments.
[19]

The aforecited policy was mentioned as a basis for the issuance of Executive
Order No. 97-A, thus:

WHEREAS, Republic Act No. 7227 provides that within the framework and
subject to the mandate and limitations of the Constitution and the pertinent
provisions of the Local Government Code, the Subic Special Economic and
Free Port Zone (SSEFPZ) shall be developed into a self-sustaining industrial,
commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive
foreign investments; and
WHEREAS, a special tax and duty-free privilege within a Secured Area in the
SSEFPZ subject, to existing laws has been determined necessary to attract local
and foreign visitors to the zone.
Executive Order No. 97-A provides guidelines to govern the tax and duty-free
privileges within the Secured Area of the Subic Special Economic and Free Port

Zone. Paragraph 1.6 thereof states that (t)he sale of tax and duty-free consumer
items in the Secured Area shall only be allowed in duly authorized duty-free
shops.
The Court finds that the setting up of such commercial establishments which
are the only ones duly authorized to sell consumer items tax and duty-free is still
well within the policy enunciated in Section 12 of Republic Act No. 7227
that . . .the Subic Special Economic Zone shall be developed into a selfsustaining, industrial, commercial, financial and investment center to
generate employment opportunities in and around the zone and to attract
and promote productive foreign investments. (Emphasis supplied.)
However, the Court reiterates that the second sentences of paragraphs 1.2
and 1.3 of Executive Order No. 97-A, allowing tax and duty-free removal of
goods to certain individuals, even in a limited amount, from the Secured Area of
the SSEZ, are null and void for being contrary to Section 12 of Republic Act
No. 7227. Said Section clearly provides that exportation or removal of goods
from the territory of the Subic Special Economic Zone to the other parts of the
Philippine territory shall be subject to customs duties and taxes under the
Customs and Tariff Code and other relevant tax laws of the Philippines.
On the other hand, insofar as the CSEZ is concerned, the case for an invalid
exercise of executive legislation is tenable.
In John Hay Peoples Alternative Coalition, et al. v. Victor Lim, et al., this
Court resolved an issue, very much like the one herein, concerning the legality of
the tax exemption benefits given to the John Hay Economic Zone under
Presidential Proclamation No. 420, Series of 1994, CREATING AND
DESIGNATING A PORTION OF THE AREA COVERED BY THE FORMER
CAMP JOHN AS THE JOHN HAY SPECIAL ECONOMIC ZONE PURSUANT TO
REPUBLIC ACT NO. 7227.
[20]

In that case, among the arguments raised was that the granting of tax
exemptions to John Hay was an invalid and illegal exercise by the President of
the powers granted only to the Legislature. Petitioners therein argued that
Republic Act No. 7227 expressly granted tax exemption only to Subic and not to
the other economic zones yet to be established. Thus, the grant of tax exemption
to John Hay by Presidential Proclamation contravenes the constitutional mandate
that [n]o law granting any tax exemption shall be passed without the concurrence
of a majority of all the members of Congress.
[21]

This Court sustained the argument and ruled that the incentives under
Republic Act No. 7227 are exclusive only to the SSEZ. The President, therefore,
had no authority to extend their application to John Hay. To quote from the
Decision:

More importantly, the nature of most of the assailed privileges is one of tax
exemption. It is the legislature, unless limited by a provision of a state
constitution, that has full power to exempt any person or corporation or class of
property from taxation, its power to exempt being as broad as its power to tax.
Other than Congress, the Constitution may itself provide for specific tax
exemptions, or local governments may pass ordinances on exemption only
from local taxes.
The challenged grant of tax exemption would circumvent the Constitutions
imposition that a law granting any tax exemption must have the concurrence of
a majority of all the members of Congress. In the same vein, the other kinds of

privileges extended to the John Hay SEZ are by tradition and usage for
Congress to legislate upon.
Contrary to public respondents suggestions, the claimed statutory exemption of
the John Hay SEZ from taxation should be manifest and unmistakable from the
language of the law on which it is based; it must be expressly granted in a
statute stated in a language too clear to be mistaken. Tax exemption cannot be
implied as it must be categorically and unmistakably expressed.
If it were the intent of the legislature to grant to John Hay SEZ the same tax
exemption and incentives given to the Subic SEZ, it would have so expressly
provided in R.A. No. 7227.
[22]

In the present case, while Section 12 of Republic Act No. 7227 expressly
provides for the grant of incentives to the SSEZ, it fails to make any similar grant
in favor of other economic zones, including the CSEZ. Tax and duty-free
incentives being in the nature of tax exemptions, the basis thereof should be
categorically and unmistakably expressed from the language of the statute.
Consequently, in the absence of any express grant of tax and duty-free privileges
to the CSEZ in Republic Act No. 7227, there would be no legal basis to uphold
the questioned portions of two issuances: Section 5 of Executive Order No. 80
and Section 4 of BCDA Board Resolution No. 93-05-034, which both pertain to
the CSEZ.
Petitioners also contend that the questioned issuances constitute executive
legislation for allowing the removal of consumer goods and items from the zones
without payment of corresponding duties and taxes in violation of Republic Act
No. 7227 as Section 12 thereof provides for the taxation of goods that are
exported or removed from the SSEZ to other parts of the Philippine territory.
On September 26, 1997, Executive Order No. 444 was issued, curtailing the
duty-free shopping privileges in the SSEZ and the CSEZ to prevent abuse of
duty-free privilege and to protect local industries from unfair competition. The
pertinent provisions of said issuance state, as follows:

SECTION 3. Special Shopping Privileges Granted During the Year-round


Centennial Anniversary Celebration in 1998. Upon effectivity of this Order and
up to the Centennial Year 1998, in addition to the permanent residents, locators
and employees of the fenced-in areas of the Subic Special Economic and
Freeport Zone and the Clark Special Economic Zone who are allowed
unlimited duty free purchases, provided these are consumed within said fencedin areas of the Zones, the residents of the municipalities adjacent to Subic and
Clark as respectively provided in R.A. 7227 (1992) and E.O. 97-A s. 1993 shall
continue to be allowed One Hundred US Dollars (US$100) monthly shopping
privilege until 31 December 1998. Domestic tourists visiting Subic and Clark
shall be allowed a shopping privilege of US$25 for consumable goods which
shall be consumed only in the fenced-in area during their visit therein.
SECTION 4. Grant of Duty Free Shopping Privileges Limited Only To
Individuals Allowed by Law. Starting 1 January 1999, only the following
persons shall continue to be eligible to shop in duty free shops/outlets with their
corresponding purchase limits:

a. Tourists and Filipinos traveling to or returning from foreign destinations under


E.O. 97-A s. 1993 One Thousand US Dollars (US$1,000) but not to exceed Ten
Thousand US Dollars (US$10,000) in any given year;
b. Overseas Filipino Workers (OFWs) and Balikbayans defined under R.A. 6768
dated 3 November 1989 Two Thousand US Dollars (US$2,000);
c. Residents, eighteen (18) years old and above, of the fenced-in areas of the
freeports under R.A. 7227 (1992) and E.O. 97-A s. 1993 Unlimited purchase as
long as these are for consumption within these freeports.
The term "Residents" mentioned in item c above shall refer to individuals who,
by virtue of domicile or employment, reside on permanent basis within the
freeport area. The term excludes (1) non-residents who have entered into shortor long-term property lease inside the freeport, (2) outsiders engaged in doing
business within the freeport, and (3) members of private clubs (e.g., yacht and
golf clubs) based or located within the freeport. In this regard, duty free
privileges granted to any of the above individuals (e.g., unlimited shopping
privilege, tax-free importation of cars, etc.) are hereby revoked.
[23]

A perusal of the above provisions indicates that effective January 1, 1999,


the grant of duty-free shopping privileges to domestic tourists and to residents
living adjacent to SSEZ and the CSEZ had been revoked. Residents of the
fenced-in area of the free port are still allowed unlimited purchase of consumer
goods, as long as these are for consumption within these freeports. Hence, the
only individuals allowed by law to shop in the duty-free outlets and remove
consumer goods out of the free ports tax-free are tourists and Filipinos traveling
to or returning from foreign destinations, and Overseas Filipino Workers and
Balikbayans as defined under Republic Act No. 6768.
[24]

Subsequently, on October 20, 2000, Executive Order No. 303 was issued,
amending Executive Order No. 444. Pursuant to the limited duration of the
privileges granted under the preceding issuance, Section 2 of Executive Order
No. 303 declared that [a]ll special shopping privileges as granted under Section 3
of Executive Order 444, s. 1997, are hereby deemed terminated. The grant of
duty free shopping privileges shall be restricted to qualified individuals as
provided by law.
It bears noting at this point that the shopping privileges currently being
enjoyed by Overseas Filipino Workers, Balikbayans, and tourists traveling to and
from foreign destinations, draw authority not from the issuances being assailed
herein, but from Executive Order No. 46 and Republic Act No. 6768, both
enacted prior to the promulgation of Republic Act No. 7227.
[25]

From the foregoing, it appears that petitioners objection to the allowance of


tax-free removal of goods from the special economic zones as previously
authorized by the questioned issuances has become moot and academic.
In any event, Republic Act No. 7227, specifically Section 12 (b) thereof,
clearly provides that exportation or removal of goods from the territory of the
Subic Special Economic Zone to the other parts of the Philippine territory shall be
subject to customs duties and taxes under the Customs and Tariff Code and
other relevant tax laws of the Philippines.
Thus, the removal of goods from the SSEZ to other parts of the Philippine
territory without payment of said customs duties and taxes is not authorized by

the Act. Consequently, the following italicized provisions found in the second
sentences of paragraphs 1.2 and 1.3, Section 1 of Executive Order No. 97-A are
null and void:

1.2 Residents of the SSEFPZ living outside the Secured Area can enter and
consume any quantity of consumption items in hotels and restaurants
within the Secured Area. However, these residents can purchase and
bring out of the Secured Area to other parts of the Philippine territory
consumer items worth not exceeding US $100 per month per person.
Only residents age 15 and over are entitled to this privilege.
1.3 Filipinos not residing within the SSEFPZ can enter the Secured Area
and consume any quantity of consumption items in hotels and
restaurants within the Secured Area. However, they can purchase and
bring out of the Secured Area to other parts of the Philippine territory
consumer items worth not exceeding US $200 per year per person.
Only Filipinos age 15 and over are entitled to this privilege.
[26]

A similar provision found in paragraph 5, Section 4(A) of BCDA Board


Resolution No. 93-05-034 is also null and void. Said Resolution applied the
incentives given to the SSEZ under Republic Act No. 7227 to the CSEZ, which,
as aforestated, is without legal basis.
Having concluded earlier that the CSEZ is excluded from the tax and dutyfree incentives provided under Republic Act No. 7227, this Court will resolve the
remaining arguments only with regard to the operations of the SSEZ. Thus, the
assailed issuance that will be discussed is solely Executive Order No. 97-A,
since it is the only one among the three questioned issuances which pertains to
the SSEZ.
Equal Protection of the Laws
Petitioners argue that the assailed issuance (Executive Order No. 97-A) is
violative of their right to equal protection of the laws, as enshrined in Section 1,
Article III of the Constitution. To support this argument, they assert that private
respondents operating inside the SSEZ are not different from the retail
establishments located outside, the products sold being essentially the same.
The only distinction, they claim, lies in the products variety and source, and the
fact that private respondents import their items tax-free, to the prejudice of the
retailers and manufacturers located outside the zone.
Petitioners contention cannot be sustained. It is an established principle of
constitutional law that the guaranty of the equal protection of the laws is not
violated by a legislation based on a reasonable classification. Classification, to
be valid, must (1) rest on substantial distinction, (2) be germane to the purpose of
the law, (3) not be limited to existing conditions only, and (4) apply equally to all
members of the same class.
[27]

[28]

Applying the foregoing test to the present case, this Court finds no violation
of the right to equal protection of the laws. First, contrary to petitioners claim,
substantial distinctions lie between the establishments inside and outside the
zone, justifying the difference in their treatment. In Tiu v. Court of Appeals, the
constitutionality of Executive Order No. 97-A was challenged for being violative of
the equal protection clause. In that case, petitioners claimed that Executive Order
[29]

No. 97-A was discriminatory in confining the application of Republic Act No. 7227
within a secured area of the SSEZ, to the exclusion of those outside but are,
nevertheless, still within the economic zone.
Upholding the constitutionality of Executive Order No. 97-A, this Court
therein found substantial differences between the retailers inside and outside the
secured area, thereby justifying a valid and reasonable classification:

Certainly, there are substantial differences between the big investors who are
being lured to establish and operate their industries in the so-called secured area
and the present business operators outside the area. On the one hand, we are
talking of billion-peso investments and thousands of new jobs. On the other
hand, definitely none of such magnitude. In the first, the economic impact will
be national; in the second, only local. Even more important, at this time the
business activities outside the secured area are not likely to have any impact in
achieving the purpose of the law, which is to turn the former military base
to productive use for the benefit of the Philippine economy. There is, then,
hardly any reasonable basis to extend to them the benefits and incentives
accorded in R.A. 7227. Additionally, as the Court of Appeals pointed out, it will
be easier to manage and monitor the activities within the secured area, which is
already fenced off, to prevent fraudulent importation of merchandise or
smuggling.
It is well-settled that the equal-protection guarantee does not require territorial
uniformity of laws. As long as there are actual and material differences between
territories, there is no violation of the constitutional clause. And of course,
anyone, including the petitioners, possessing the requisite investment capital
can always avail of the same benefits by channeling his or her resources or
business operations into the fenced-off free port zone.
[30]

The Court in Tiu found real and substantial distinctions between residents
within the secured area and those living within the economic zone but outside the
fenced-off area. Similarly, real and substantial differences exist between the
establishments herein involved. A significant distinction between the two groups
is that enterprises outside the zones maintain their businesses within Philippine
customs territory, while private respondents and the other duly-registered zone
enterprises operate within the so-called separate customs territory. To grant the
same tax incentives given to enterprises within the zones to businesses
operating outside the zones, as petitioners insist, would clearly defeat the
statutes intent to carve a territory out of the military reservations in Subic Bay
where free flow of goods and capital is maintained.
The classification is germane to the purpose of Republic Act No. 7227. As
held in Tiu, the real concern of Republic Act No. 7227 is to convert the lands
formerly occupied by the US military bases into economic or industrial areas. In
furtherance of such objective, Congress deemed it necessary to extend
economic incentives to the establishments within the zone to attract and
encourage foreign and local investors. This is the very rationale behind Republic
Act No. 7227 and other similar special economic zone laws which grant a
complete package of tax incentives and other benefits.
The classification, moreover, is not limited to the existing conditions when the
law was promulgated, but to future conditions as well, inasmuch as the law
envisioned the former military reservation to ultimately develop into a selfsustaining investment center.

And, lastly, the classification applies equally to all retailers found within the
secured area. As ruled in Tiu, the individuals and businesses within the secured
area, being in like circumstances or contributing directly to the achievement of
the end purpose of the law, are not categorized further. They are all similarly
treated, both in privileges granted and in obligations required.
With all the four requisites for a reasonable classification present, there is no
ground to invalidate Executive Order No. 97-A for being violative of the equal
protection clause.
Prohibition against Unfair Competition
and Practices in Restraint of Trade
Petitioners next argue that the grant of special tax exemptions and privileges
gave the private respondents undue advantage over local enterprises which do
not operate inside the SSEZ, thereby creating unfair competition in violation of
the constitutional prohibition against unfair competition and practices in restraint
of trade.
The argument is without merit. Just how the assailed issuance is violative of
the prohibition against unfair competition and practices in restraint of trade is not
clearly explained in the petition. Republic Act No. 7227, and consequently
Executive Order No. 97-A, cannot be said to be distinctively arbitrary against the
welfare of businesses outside the zones. The mere fact that incentives and
privileges are granted to certain enterprises to the exclusion of others does not
render the issuance unconstitutional for espousing unfair competition. Said
constitutional prohibition cannot hinder the Legislature from using tax incentives
as a tool to pursue its policies.
Suffice it to say that Congress had justifiable reasons in granting incentives
to the private respondents, in accordance with Republic Act No. 7227s policy of
developing the SSEZ into a self-sustaining entity that will generate employment
and attract foreign and local investment. If petitioners had wanted to avoid any
alleged unfavorable consequences on their profits, they should upgrade their
standards of quality so as to effectively compete in the market. In the alternative,
if petitioners really wanted the preferential treatment accorded to the private
respondents, they could have opted to register with SSEZ in order to operate
within the special economic zone.
Preferential Use of Filipino Labor, Domestic Materials
and Locally Produced Goods
Lastly, petitioners claim that the questioned issuance (Executive Order No.
97-A) openly violated the State policy of promoting the preferential use of Filipino
labor, domestic materials and locally produced goods and adopting measures to
help make them competitive.
Again, the argument lacks merit. This Court notes that petitioners failed to
substantiate their sweeping conclusion that the issuance has violated the State
policy of giving preference to Filipino goods and labor. The mere fact that said
issuance authorizes the importation and trade of foreign goods does not suffice
to declare it unconstitutional on this ground.
Petitioners cite Manila Prince Hotel v. GSIS which, however, does not apply.
That case dealt with the policy enunciated under the second paragraph of
[31]

Section 10, Article XII of the Constitution, applicable to the grant of rights,
privileges, and concessions covering the national economy and patrimony, which
is different from the policy invoked in this petition, specifically that of giving
preference to Filipino materials and labor found under Section 12 of the same
Article of the Constitution. (Emphasis supplied).
[32]

In Taada v. Angara, this Court elaborated on the meaning of Section 12,


Article XII of the Constitution in this wise:
[33]

[W]hile the Constitution indeed mandates a bias in favor of Filipino goods,


services, labor and enterprises, at the same time, it recognizes the need for
business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited entry of foreign
goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity,
frowning only on foreign competition that is unfair.
[34]

This Court notes that the Executive Department, with its subsequent
issuance of Executive Order Nos. 444 and 303, has provided certain measures
to prevent unfair competition. In particular, Executive Order Nos. 444 and 303
have restricted the special shopping privileges to certain individuals. Executive
Order No. 303 has limited the range of items that may be sold in the duty-free
outlets, and imposed sanctions to curb abuses of duty-free privileges. With
these measures, this Court finds no reason to strike down Executive Order No.
97-A for allegedly being prejudicial to Filipino labor, domestic materials and
locally produced goods.
[35]

[36]

[37]

WHEREFORE, the petition is PARTLY GRANTED. Section 5 of Executive


Order No. 80 and Section 4 of BCDA Board Resolution No. 93-05-034 are hereby
declared NULL and VOID and are accordingly declared of no legal force and
effect. Respondents are hereby enjoined from implementing the aforesaid void
provisions. All portions of Executive Order No. 97-A are valid and effective,
except the second sentences in paragraphs 1.2 and 1.3 of said Executive Order,
which are hereby declared INVALID.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales, Callejo, Sr., Tinga, ChicoNazario, and Garcia, JJ., concur.
Carpio, J., no part.
Corona, J., on official leave.

[1]

Executive Order No. 80 is entitled, Authorizing the Establishment of the Clark Development
Corporation as the Implementing Arm of the Bases Conversion and Development
Authority for the Clark Special Economic Zone, and Directing all Heads of Departments,
Bureaus, Offices, Agencies and Instrumentalities of Government to Support the Program.

[2]

BCDA Board Resolution No. 93-05-034 is entitled, Prescribing the Investment Climate in the
Clark Special Economic Zone for Implementation by the Clark Development Corporation.

[3]

Bases Conversion and Development Act of 1992.

[4]

Underscoring supplied.

[5]

Rollo, pp. 13, 15, 17, and 18.

[6]

Bayan (Bagong Alyansang Makabayan) v. Zamora , G.R. No. 138570, October 10, 2000, 342
SCRA 449, citing Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA
110.

[7]

Osmea v. Commission on Elections, G.R. Nos. 100318, 100417, and 100420, July 30, 1991,
199 SCRA 750.

[8]

Basco v. Phil. Amusements and Gaming Corporation, G.R. No. 91649, May 14, 1991, 197
SCRA 52.

[9]

Cawaling, Jr. v. Commission on Elections, G.R. Nos. 146319 and 146342, October 26,
2001, 368 SCRA 453.

[10]

Association of Small Landowners in the Philippines., Inc., v. Secretary of Agrarian Reform, G.R.
No. 78742, July 14, 1989, 175 SCRA 343.

[11]

Cawaling, Jr., v. Commission on Elections, supra, note 9.

[12]

Misolas v. Panga, G.R. No. 83341, January 30, 1990, 181 SCRA 648.

[13]

Underscoring supplied.

[14]

Eugenio v. Drilon, G.R. No. 109404, January 22, 1996, 252 SCRA 106.

[15]

Gomez v. Ventura and Board of Medical Examiners, No. 32441, March 29, 1930, 54 Phil. 726.

[16]

Dimaporo v. Mitra, Jr., G.R. No. 96859, October 15, 1991, 202 SCRA 779; Primero v. Court of
Appeals, G.R. Nos. 48468-69, November 22, 1989, 179 SCRA 542.

[17]

Emphasis supplied.

[18]

Esso Standard Eastern, Inc. v. Commissioner of Internal Revenue, G.R. No. 28508-9, July 7,
1989, 175 SCRA 149.

[19]

Emphasis supplied.

[20]

G.R. No. 119775, October 24, 2003, 414 SCRA 356.

[21]

Section 28(4), Article VI of the Constitution.

[22]

Supra, note 20, at 377.

[23]

Underscoring supplied.

[24]

Republic Act No. 6768 entitled, AN ACT INSTITUTING A BALIKBAYAN PROGRAM.

[25]

E.O. No. 46, GRANTING THE MINISTRY OF TOURISM, THROUGH THE PHILIPPINE
TOURISM AUTHORITY (PTA), AUTHORITY TO ESTABLISH AND OPERATE A DUTY
AND TAX FREE MERCHANDISING SYSEM IN THE PHILIPPINES . . . .
SEC. 1. The Ministry of Tourism, through the Philippine Tourism Authority (PTA) is
hereby authorized to establish a duty and tax free merchandising system in the
Philippines to augment the service facilities for tourists and to generate foreign exchange
and revenue for the government. Under this system, the Philippine Tourism Authority shall
have the exclusive authority to operate stores and shops that would sell, among others,
tax and duty free merchandise, goods and articles, in international airports and sea ports
throughout the country in accordance with the rules and regulations issued by the
Ministry of Tourism.

[26]

Italics supplied.

[27]

People v. Cayat, G.R. No. 45987, May 5, 1939, 68 Phil. 12.

[28]

Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278.

[29]

Ibid.

[30]

Id. at 291.

[31]

G.R. No. 122156, February 3, 1997, 267 SCRA 408.

[32]

Sec. 10, Art. XII, provides that:


...
In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos. . . .

[33]

G.R. No. 118295, May 2, 1997, 272 SCRA 18.

[34]

Id. at 58-59.

[35]

Executive Order No. 303, Section 3; Executive Order No. 444, Section 4.

[36]

Executive Order No. 303, Section 3.

[37]

Executive Order No. 303, Section 5.

THIRD DIVISION
EDGAR SAN LUIS, G.R. No. 133743
Petitioner,
Present:
- versus - Ynares-Santiago, J. (Chairperson),
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
FELICIDAD SAN LUIS,
Respondent.
x ---------------------------------------------------- x
RODOLFO SAN LUIS, G.R. No. 134029
Petitioner,
- versus Promulgated:
FELICIDAD SAGALONGOS
alias FELICIDAD SAN LUIS,
Respondent. February 6, 2007
x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the February
4, 1998 Decision[1] of the Court of Appeals in CA-G.R. CV No. 52647,
which reversed and set aside the September 12, 1995 [2] and January 31,
1996[3] Resolutions of the Regional Trial Court of Makati City, Branch 134
in SP. Proc. No. M-3708; and its May 15, 1998Resolution[4] denying
petitioners motion for reconsideration.
The instant case involves the settlement of the estate of Felicisimo T.
San Luis (Felicisimo), who was the former governor of
the Province of Laguna. During his lifetime, Felicisimo contracted three
marriages. His first marriage was with Virginia Sulit on March 17, 1942 out

of which were born six children, namely: Rodolfo, Mila, Edgar, Linda,
Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee
Corwin, with whom he had a son, Tobias. However, on October 15, 1971,
Merry Lee, an American citizen, filed a Complaint for Divorce [5] before the
Family Court of the First Circuit, State of Hawaii, United States of
America (U.S.A.), which issued a Decree Granting Absolute Divorce and
Awarding Child Custody on December 14, 1973.[6]
On June 20, 1974, Felicisimo married respondent Felicidad San Luis,
then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the
United Presbyterian atWilshire Boulevard, Los Angeles, California, U.S.A.
[7]
He had no children with respondent but lived with her for 18 years from
the time of their marriage up to his death onDecember 18, 1992.
Thereafter, respondent sought the dissolution of their conjugal
partnership assets and the settlement of Felicisimos estate. On December 17,
1993, she filed a petition for letters of administration [8] before
the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708
which was raffled to Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo; that, at the
time of his death, the decedent was residing at 100 San Juanico Street, New
Alabang Village, Alabang, Metro Manila; that the decedents surviving heirs
are respondent as legal spouse, his six children by his first marriage, and son
by his second marriage; that the decedent left real properties, both conjugal
and exclusive, valued at P30,304,178.00 more or less; that the decedent does
not have any unpaid debts. Respondent prayed that the conjugal partnership
assets be liquidated and that letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of
Felicisimo by his first marriage, filed a motion to dismiss [9] on the grounds
of improper venue and failure to state a cause of action. Rodolfo claimed
that the petition for letters of administration should have been filed in
the Province of Laguna because this was Felicisimos place of residence prior
to his death. He further claimed that respondent has no legal personality to
file the petition because she was only a mistress of Felicisimo since the
latter, at the time of his death, was still legally married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and joined
her brother Rodolfo in seeking the dismissal [10] of the petition. On February

28, 1994, the trial court issued an Order[11] denying the two motions to
dismiss.
Unaware of the denial of the motions to dismiss, respondent filed
on March 5, 1994 her opposition[12] thereto. She submitted documentary
evidence showing that while Felicisimo exercised the powers of his public
office in Laguna, he regularly went home to their house
in New Alabang Village, Alabang, Metro Manila which they bought
sometime in 1982. Further, she presented the decree of absolute divorce
issued by the Family Court of the First Circuit, State of Hawaii to prove that
the marriage of Felicisimo to Merry Lee had already been dissolved. Thus,
she claimed that Felicisimo had the legal capacity to marry her by virtue of
paragraph 2,[13] Article 26 of the Family Code and the doctrine laid down
in Van Dorn v. Romillo, Jr.[14]
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis,
separately filed motions for reconsideration from the Order denying their
motions to dismiss.[15] They asserted that paragraph 2, Article 26 of the
Family Code cannot be given retroactive effect to validate respondents
bigamous marriage with Felicisimo because this would impair vested rights
in derogation of Article 256[16] of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first
marriage, filed a motion to disqualify Acting Presiding Judge Anthony E.
Santos from hearing the case.
On October 24, 1994, the trial court issued an Order[17] denying the
motions for reconsideration. It ruled that respondent, as widow of the
decedent, possessed the legal standing to file the petition and that venue was
properly laid. Meanwhile, the motion for disqualification was deemed moot
and academic[18] because then Acting Presiding Judge Santos was substituted
by Judge Salvador S. Tensuan pending the resolution of said motion.
Mila filed a motion for inhibition[19] against Judge Tensuan
on November 16, 1994. On even date, Edgar also filed a motion for
reconsideration[20] from the Order denying their motion for reconsideration
arguing that it does not state the facts and law on which it was based.
On November 25, 1994, Judge Tensuan issued an Order [21] granting
the motion for inhibition. The case was re-raffled to Branch 134 presided by
Judge Paul T. Arcangel.
On April 24, 1995,[22] the trial court required the parties to submit their
respective position papers on the twin issues of venue and legal capacity of

respondent to file the petition. On May 5, 1995, Edgar manifested[23] that he


is adopting the arguments and evidence set forth in his previous motion for
reconsideration as his position paper.Respondent and Rodolfo filed their
position papers on June 14,[24] and June 20,[25] 1995, respectively.
On September 12, 1995, the trial court dismissed the petition for
letters of administration. It held that, at the time of his death, Felicisimo was
the duly elected governor and a resident of the Province of Laguna. Hence,
the petition should have been filed in Sta. Cruz, Laguna and not
in Makati City. It also ruled that respondent was without legal capacity to
file the petition for letters of administration because her marriage with
Felicisimo was bigamous, thus, void ab initio. It found that the decree of
absolute divorce dissolving Felicisimos marriage to Merry Lee was not valid
in the Philippines and did not bind Felicisimo who was a Filipino citizen. It
also ruled that paragraph 2, Article 26 of the Family Code cannot be
retroactively applied because it would impair the vested rights of Felicisimos
legitimate children.
Respondent
moved
for
reconsideration[26] and
for
[27]
disqualification of Judge Arcangel but said motions were denied.[28]

the

Respondent appealed to the Court of Appeals which reversed and set


aside the orders of the trial court in its assailed Decision dated February 4,
1998, the dispositive portion of which states:
WHEREFORE, the Orders dated September 12, 1995 and January
31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated
February 28 and October 24, 1994 are REINSTATED; and the records of
the case is REMANDED to the trial court for further proceedings.[29]

The appellante court ruled that under Section 1, Rule 73 of the Rules
of Court, the term place of residence of the decedent, for purposes of fixing
the venue of the settlement of his estate, refers to the personal, actual or
physical habitation, or actual residence or place of abode of a person as
distinguished from legal residence or domicile. It noted that although
Felicisimo discharged his functions as governor in Laguna, he actually
resided in Alabang, Muntinlupa. Thus, the petition for letters of
administration was properly filed in Makati City.
The Court of Appeals also held that Felicisimo had legal capacity to
marry respondent by virtue of paragraph 2, Article 26 of the Family Code
and the rulings in Van Dorn v. Romillo, Jr.[30] and Pilapil v. Ibay-Somera.[31] It
found that the marriage between Felicisimo and Merry Lee was validly
dissolved by virtue of the decree of absolute divorce issued by the Family

Court of the First Circuit, State of Hawaii. As a result, under paragraph 2,


Article 26, Felicisimo was capacitated to contract a subsequent marriage
with respondent. Thus
With the well-known rule express mandate of paragraph 2, Article
26, of the Family Code of the Philippines, the doctrines in Van Dorn,
Pilapil, and the reason and philosophy behind the enactment of E.O. No.
227, there is no justiciable reason to sustain the individual view sweeping
statement of Judge Arc[h]angel, that Article 26, par. 2 of the Family Code,
contravenes the basic policy of our state against divorce in any form
whatsoever. Indeed, courts cannot deny what the law grants. All that the
courts should do is to give force and effect to the express mandate of the
law. The
foreign
divorce
having
been obtained
by
the
Foreigner on December 14, 1992,[32] the Filipino divorcee, shall x x x have
capacity to remarry under Philippine laws. For this reason, the marriage
between the deceased and petitioner should not be denominated as a
bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as
the surviving spouse can institute the judicial proceeding for the settlement
of the estate of the deceased. x x x[33]

Edgar, Linda, and Rodolfo filed separate motions


reconsideration[34] which were denied by the Court of Appeals.

for

On July 2, 1998, Edgar appealed to this Court via the instant petition
for review on certiorari.[35] Rodolfo later filed a manifestation and motion to
adopt the said petition which was granted.[36]
In the instant consolidated petitions, Edgar and Rodolfo insist that the
venue of the subject petition for letters of administration was improperly laid
because at the time of his death, Felicisimo was a resident of Sta. Cruz,
Laguna. They contend that pursuant to our rulings in Nuval v.
Guray[37] and Romualdez v. RTC, Br. 7, Tacloban City,[38]residence is
synonymous with domicile which denotes a fixed permanent residence to
which when absent, one intends to return. They claim that a person can only
have one domicile at any given time. Since Felicisimo never changed his
domicile, the petition for letters of administration should have been filed in
Sta. Cruz, Laguna.
Petitioners also contend that respondents marriage to Felicisimo was
void and bigamous because it was performed during the subsistence of the
latters marriage to Merry Lee. They argue that paragraph 2, Article 26
cannot be retroactively applied because it would impair vested rights and
ratify the void bigamous marriage. As such, respondent cannot be
considered the surviving wife of Felicisimo; hence, she has no legal capacity
to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2)
whether respondent has legal capacity to file the subject petition for letters
of administration.
The petition lacks merit.
Under Section 1,[39] Rule 73 of the Rules of Court, the petition for
letters of administration of the estate of Felicisimo should be filed in the
Regional Trial Court of the province in which he resides at the time of his
death. In the case of Garcia Fule v. Court of Appeals,[40] we laid down the
doctrinal rule for determining the residence as contradistinguished from
domicile of the decedent for purposes of fixing the venue of the settlement
of his estate:
[T]he term resides connotes ex vi termini actual residence as distinguished
from legal residence or domicile. This term resides, like the terms residing
and residence, is elastic and should be interpreted in the light of the object
or purpose of the statute or rule in which it is employed. In the application
of venue statutes and rules Section 1, Rule 73 of the Revised Rules of
Court is of such nature residence rather than domicile is the significant
factor. Even where the statute uses the word domicile still it is construed
as meaning residence and not domicile in the technical sense. Some cases
make a distinction between the terms residence and domicile but as
generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term inhabitant. In other words, resides
should be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence or
place of abode. It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely residence, that is,
personal residence, not legal residence or domicile.Residence simply
requires bodily presence as an inhabitant in a given place, while domicile
requires bodily presence in that place and also an intention to make it ones
domicile. No particular length of time of residence is required though;
however, the residence must be more than temporary.[41] (Emphasis
supplied)

It is incorrect for petitioners to argue that residence, for purposes of


fixing the venue of the settlement of the estate of Felicisimo, is synonymous
with domicile. The rulings in Nuval and Romualdez are inapplicable to the
instant case because they involve election cases. Needless to say, there is a
distinction between residence for purposes of election laws and residence for
purposes of fixing the venue of actions. In election cases, residence and
domicile are treated as synonymous terms, that is, the fixed permanent
residence to which when absent, one has the intention of returning.
[42]
However, for purposes of fixing venue under the Rules of Court, the
residence of a person is his personal, actual or physical habitation, or actual
residence or place of abode, which may not necessarily be his legal
residence or domicile provided he resides therein with continuity and

consistency.[43] Hence, it is possible that a person may have his residence in


one place and domicile in another.
In the instant case, while petitioners established that Felicisimo was
domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a
residence in Alabang, Muntinlupa from 1982 up to the time of his
death. Respondent submitted in evidence the Deed of Absolute Sale [44] dated
January 5, 1983 showing that the deceased purchased the aforesaid
property. She also presented billing statements[45] from the Philippine Heart
Center and Chinese General Hospital for the period August to December
1992 indicating the address of Felicisimo at 100 San Juanico, Ayala
Alabang, Muntinlupa. Respondent also presented proof of membership of
the deceased in the Ayala Alabang Village Association[46] and Ayala Country
Club, Inc.,[47] letter-envelopes[48] from 1988 to 1990 sent by the deceaseds
children to him at his Alabang address, and the deceaseds calling
cards[49] stating that his home/city address is at 100 San Juanico, Ayala
Alabang Village, Muntinlupa while his office/provincial address is in
Provincial Capitol, Sta. Cruz, Laguna.
From the foregoing, we find that Felicisimo was a resident of
Alabang, Muntinlupa for purposes of fixing the venue of the settlement of
his estate. Consequently, the subject petition for letters of administration was
validly filed in the Regional Trial Court [50] which has territorial jurisdiction
over Alabang, Muntinlupa. The subject petition was filed on December 17,
1993. At that time, Muntinlupa was still a municipality and the branches of
the Regional Trial Court of the National Capital Judicial Region which had
territorial jurisdiction over Muntinlupa were then seated in Makati City as
per Supreme Court Administrative Order No. 3.[51] Thus, the subject petition
was validly filed before the Regional Trial Court of Makati City.
Anent the issue of respondent Felicidads legal personality to file the
petition for letters of administration, we must first resolve the issue of
whether a Filipino who is divorced by his alien spouse abroad may validly
remarry under the Civil Code, considering that Felicidads marriage to
Felicisimo was solemnized on June 20, 1974, or before the Family Code
took effect on August 3, 1988. In resolving this issue, we need not
retroactively apply the provisions of the Family Code, particularly Art. 26,
par. (2) considering that there is sufficient jurisprudential basis allowing us
to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr.[52] involved a marriage between a
foreigner and his Filipino wife, which marriage was subsequently dissolved
through a divorce obtained abroad by the latter. Claiming that the divorce

was not valid under Philippine law, the alien spouse alleged that his interest
in the properties from their conjugal partnership should be protected. The
Court, however, recognized the validity of the divorce and held that the alien
spouse had no interest in the properties acquired by the Filipino wife after
the divorce. Thus:
In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of the
United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the
bond of matrimony by a competent jurisdiction are to
change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The
marriage tie, when thus severed as to one party, ceases to
bind either. A husband without a wife, or a wife without a
husband, is unknown to the law. When the law provides, in
the nature of a penalty, that the guilty party shall not marry
again, that party, as well as the other, is still absolutely
freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the case
below as petitioners husband entitled to exercise control over conjugal
assets. As he is bound by the Decision of his own countrys Court, which
validly exercised jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.[53]

As to the effect of the divorce on the Filipino wife, the Court ruled
that she should no longer be considered married to the alien spouse. Further,
she should not be required to perform her marital duties and obligations. It
held:
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private respondent and
still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.[54]
(Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera[55] where the


Court recognized the validity of a divorce obtained abroad. In the said case,
it was held that the alien spouse is not a proper party in filing the adultery
suit against his Filipino wife. The Court stated that the severance of the
marital bond had the effect of dissociating the former spouses from each

other, hence the actuations of one would not affect or cast obloquy on the
other.[56]
Likewise, in Quita v. Court of Appeals,[57] the Court stated that where
a Filipino is divorced by his naturalized foreign spouse, the ruling in Van
Dorn applies.[58]Although decided on December 22, 1998, the divorce in the
said case was obtained in 1954 when the Civil Code provisions were still in
effect.
The significance of the Van Dorn case to the development of limited
recognition of divorce in the Philippines cannot be denied. The ruling has
long been interpreted as severing marital ties between parties in a mixed
marriage and capacitating the Filipino spouse to remarry as a necessary
consequence of upholding the validity of a divorce obtained abroad by the
alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating
that if the foreigner obtains a valid foreign divorce, the Filipino spouse shall
have capacity to remarry under Philippine law.[59] In Garcia v. Recio,[60] the
Court likewise cited the aforementioned case in relation to Article 26.[61]
In the recent case of Republic v. Orbecido III,[62] the historical
background and legislative intent behind paragraph 2, Article 26 of the
Family Code were discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law
Executive Order No. 209, otherwise known as the Family Code, which
took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law, amending
Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and
38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (Emphasis supplied)
xxxx
Legislative Intent

Records of the proceedings of the Family Code deliberations


showed that the intent of Paragraph 2 of Article 26, according to Judge
Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce, is no longer married to the
Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the
1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a
marriage between a Filipino citizen and a foreigner. The Court held
therein that a divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.[63] (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation


where a divorce is validly obtained abroad by the alien spouse. With the
enactment of the Family Code and paragraph 2, Article 26 thereof, our
lawmakers codified the law already established through judicial precedent.
Indeed, when the object of a marriage is defeated by rendering its
continuance intolerable to one of the parties and productive of no possible
good to the community, relief in some way should be obtainable.
[64]
Marriage, being a mutual and shared commitment between two parties,
cannot possibly be productive of any good to the society where one is
considered released from the marital bond while the other remains bound to
it. Such is the state of affairs where the alien spouse obtains a valid divorce
abroad against the Filipino spouse, as in this case.
Petitioners cite Articles 15[65] and 17[66] of the Civil Code in stating
that the divorce is void under Philippine law insofar as Filipinos are
concerned. However, in light of this Courts rulings in the cases discussed
above, the Filipino spouse should not be discriminated against in his own
country if the ends of justice are to be served. [67] In Alonzo v. Intermediate
Appellate Court,[68] the Court stated:
But as has also been aptly observed, we test a law by its results;
and likewise, we may add, by its purposes. It is a cardinal rule that, in
seeking the meaning of the law, the first concern of the judge should be to
discover in its provisions the intent of the lawmaker. Unquestionably, the
law should never be interpreted in such a way as to cause injustice as this
is never within the legislative intent. An indispensable part of that intent,
in fact, for we presume the good motives of the legislature, is to render
justice.
Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we must
keep them so. To be sure, there are some laws that, while generally valid,
may seem arbitrary when applied in a particular case because of its
peculiar circumstances. In such a situation, we are not bound, because

only of our nature and functions, to apply them just the same, in slavish
obedience to their language. What we do instead is find a balance between
the word and the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like robots to the literal
command without regard to its cause and consequence. Courts are apt to
err by sticking too closely to the words of a law, so we are warned, by
Justice Holmes again, where these words import a policy that goes beyond
them.
xxxx
More than twenty centuries ago, Justinian defined justice as the
constant and perpetual wish to render every one his due. That wish
continues to motivate this Court when it assesses the facts and the law in
every case brought to it for decision. Justice is always an essential
ingredient of its decisions. Thus when the facts warrants, we interpret the
law in a way that will render justice, presuming that it was the intention of
the lawmaker, to begin with, that the law be dispensed with justice.[69]

Applying the above doctrine in the instant case, the divorce decree
allegedly obtained by Merry Lee which absolutely allowed Felicisimo to
remarry, would have vested Felicidad with the legal personality to file the
present petition as Felicisimos surviving spouse. However, the records show
that there is insufficient evidence to prove the validity of the divorce
obtained by Merry Lee as well as the marriage of respondent and Felicisimo
under the laws of the U.S.A. In Garcia v. Recio,[70] the Court laid down the
specific guidelines for pleading and proving foreign law and divorce
judgments. It held that presentation solely of the divorce decree is
insufficient and that proof of its authenticity and due execution must be
presented. Under Sections 24 and 25 of Rule 132, a writing or document
may be proven as a public or official record of a foreign country by either
(1) an official publication or (2) a copy thereof attested by the officer having
legal custody of the document. If the record is not kept in the Philippines,
such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in
the foreign country in which the record is kept and (b) authenticated by the
seal of his office.[71]
With regard to respondents marriage to Felicisimo allegedly
solemnized in California, U.S.A., she submitted photocopies of the Marriage
Certificate and the annotated text[72] of the Family Law Act of California
which purportedly show that their marriage was done in accordance with the
said law. As stated in Garcia, however, the Court cannot take judicial notice
of foreign laws as they must be alleged and proved.[73]

Therefore, this case should be remanded to the trial court for further
reception of evidence on the divorce decree obtained by Merry Lee and the
marriage of respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to marry
respondent in 1974, nevertheless, we find that the latter has the legal
personality to file the subject petition for letters of administration, as she
may be considered the co-owner of Felicisimo as regards the properties that
were acquired through their joint efforts during their cohabitation.
Section 6,[74] Rule 78 of the Rules of Court states that letters of
administration may be granted to the surviving spouse of the
decedent. However, Section 2, Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of administration. A
petition for letters of administration must be filed by an interested
person and must show, as far as known to the petitioner: x x x.

An interested person has been defined as one who would be benefited


by the estate, such as an heir, or one who has a claim against the estate, such
as a creditor. The interest must be material and direct, and not merely
indirect or contingent.[75]
In the instant case, respondent would qualify as an interested person
who has a direct interest in the estate of Felicisimo by virtue of their
cohabitation, the existence of which was not denied by petitioners. If she
proves the validity of the divorce and Felicisimos capacity to remarry, but
fails to prove that her marriage with him was validly performed under the
laws of the U.S.A., then she may be considered as a co-owner under Article
144[76] of the Civil Code. This provision governs the property relations
between parties who live together as husband and wife without the benefit of
marriage, or their marriage is void from the beginning. It provides that the
property acquired by either or both of them through their work or industry or
their wages and salaries shall be governed by the rules on co-ownership. In a
co-ownership, it is not necessary that the property be acquired through their
joint labor, efforts and industry. Any property acquired during the union
is prima facie presumed to have been obtained through their joint
efforts. Hence, the portions belonging to the co-owners shall be presumed
equal, unless the contrary is proven.[77]
Meanwhile, if respondent fails to prove the validity of both the
divorce and the marriage, the applicable provision would be Article 148 of
the Family Code which has filled the hiatus in Article 144 of the Civil Code

by expressly regulating the property relations of couples living together as


husband and wife but are incapacitated to marry.[78] InSaguid v. Court of
Appeals,[79] we held that even if the cohabitation or the acquisition of
property occurred before the Family Code took effect, Article 148 governs.
[80]
The Court described the property regime under this provision as follows:
The regime of limited co-ownership of property governing the
union of parties who are not legally capacitated to marry each other, but
who nonetheless live together as husband and wife, applies to properties
acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven
actual contribution of money, property or industry. Absent proof of the
extent thereof, their contributions and corresponding shares shall be
presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which
involved the issue of co-ownership of properties acquired by the parties to
a bigamous marriage and an adulterous relationship, respectively, we ruled
that proof of actual contribution in the acquisition of the property is
essential. x x x
As in other civil cases, the burden of proof rests upon the party
who, as determined by the pleadings or the nature of the case, asserts an
affirmative issue. Contentions must be proved by competent evidence and
reliance must be had on the strength of the partys own evidence and not
upon the weakness of the opponents defense. x x x[81]

In view of the foregoing, we find that respondents legal capacity to


file the subject petition for letters of administration may arise from her status
as the surviving wife of Felicisimo or as his co-owner under Article 144 of
the Civil Code or Article 148 of the Family Code.
WHEREFORE, the petition is DENIED. The Decision of the Court
of Appeals reinstating and affirming the February 28, 1994 Order of the
Regional Trial Court which denied petitioners motion to dismiss and
its October 24, 1994 Order which dismissed petitioners motion for
reconsideration is AFFIRMED. Let this case be REMANDED to the trial
court for further proceedings.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.


Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION
I attest that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

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

REYNATO S. PUNO
Chief Justice

[1]

Rollo of G.R. No. 133743, pp. 45-66. Penned by Associate Justice Artemon D. Luna and concurred in by
Associate Justices Godardo A. Jacinto and Roberto A. Barrios.
[2]
Records, pp. 335-338. Penned by Judge Paul T. Arcangel.
[3]
Id. at 391-393.
[4]
Rollo of G.R. No. 133743, p. 68. Penned by Associate Justice Artemon D. Luna and concurred in by
Associate Justices Demetrio G. Demetria and Roberto A. Barrios.
[5]
Records, p. 125.
[6]
Id. at 137.
[7]
Id. at 116.
[8]
Id. at 1-5.
[9]
Id. at 10-24.
[10]
Id. at 30-35.

[11]

Id. at 38.
Id. at 39-138.
[13]
When a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law.
[14]
G.R. No. L-68470, October 8, 1985, 139 SCRA 139.
[15]
See Records, pp. 155-158, 160-170 and 181-192.
[16]
This Code shall have retroactive effect insofar as it does not prejudice or impair vested rights or
acquired rights in accordance with the Civil Code or other laws.
[17]
Records, p. 259.
[18]
Id. at 260.
[19]
Id. at 262-267.
[20]
Id. at 270-272.
[21]
Id. at 288.
[22]
Id. at 301.
[23]
Id. at 302-303.
[24]
Id. at 306-311.
[25]
Id. at 318-320.
[26]
Id. at 339-349.
[27]
Id. at 350-354.
[28]
Id. at 391-393.
[29]
Rollo of G.R. No. 133743, p. 66.
[30]
Supra note 14.
[31]
G.R. No. 80116, June 30, 1989, 174 SCRA 653.
[32]
Parenthetically, it appears that the Court of Appeals proceeded from a mistaken finding of fact because
the records clearly show that the divorce was obtained on December 14, 1973 (not December 14, 1992) and
that the marriage of Gov. San Luis with respondent was celebrated on June 20, 1974. These events both
occurred before the effectivity of the Family Code on August 3, 1988.
[33]
Rollo of G.R. No. 133743, p. 65.
[34]
See CA rollo, pp. 309-322, 335-340, and 362-369.
[35]
Rollo of G.R. No. 133743, pp. 8-42.
[36]
Id. at 75.
[37]
52 Phil. 645 (1928).
[38]
G.R. No. 104960, September 14, 1993, 226 SCRA 408.
[39]
SECTION 1. Where estate of deceased persons be settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in which he
resides at the time of his death, x x x. (Underscoring supplied)
[40]
G.R. Nos. L-40502 & L-42670, November 29, 1976, 74 SCRA 189.
[41]
Id. at 199-200.
[42]
Romualdez v. RTC, Br. 7, Tacloban City, supra note 38 at 415.
[43]
See Boleyley v. Villanueva, 373 Phil. 141, 146 (1999); Dangwa Transportation Co. Inc. v.
Sarmiento, G.R. No. L-22795, January 31, 1977, 75 SCRA 124, 128-129.
[44]
Records, pp. 76-78.
[45]
Id. at 60-75.
[46]
Id. at 79.
[47]
Id. at 80.
[48]
Id. at 81-83.
[49]
Id. at 84.
[50]
The Regional Trial Court and not the Municipal Trial Court had jurisdiction over this case because the
value of Gov. San Luis estate exceeded P200,000.00 as provided for under B.P. Blg 129, Section 19(4).
[51]
SC Administrative Order No. 3 dated January 19, 1983 states in part:
Pursuant to the provisions of Section 18 of B.P. Blg. 129, and Section 4 of the
Executive Order issued by the President of the Philippines on January 17, 1983, declaring
the reorganization of the Judiciary, the territorial jurisdiction of the Regional Trial Courts
in the National Capital Judicial Region are hereby defined as follows:
xxxx
5. Branches CXXXII to CL, inclusive, with seats at Makati over the
municipalities of Las Pinas, Makati, Muntinlupa and Paraaque. x x x
[52]
Supra note 14.
[53]
Id. at 139, 143-144.
[54]
Id. at 144.
[55]
Supra note 31.
[56]
Id. at 664.
[57]
G.R. No. 124862, December 22, 1998, 300 SCRA 406.
[58]
Id. at 414; See also Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA 114, 121.
[12]

[59]

Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I,
1990 ed., p. 263.
[60]
G.R. No. 138322, October 2, 2001, 366 SCRA 437.
[61]
Id. at 447.
[62]
Supra note 58.
[63]
Id. at 119-121.
[64]
Goitia v. Campos Rueda, 35 Phil. 252, 254-255 (1916).
[65]
ART. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.
[66]
Art. 17. x x x Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
[67]
Supra note 14 at 144.
[68]
G.R. No. L-72873, May 28, 1987, 150 SCRA 259.
[69]
Id. at 264-265, 268.
[70]
Supra note 60.
[71]
Id. at 448-449.
[72]
Records, pp. 118-124.
[73]
Supra note 60 at 451.
[74]
SEC. 6. When and to whom letters of administration granted. If x x x a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion
of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed,
if competent and willing to serve; x x x.
[75]
Saguinsin v. Lindayag,116 Phil. 1193, 1195 (1962).
[76]
Article 144 of the Civil Code reads in full:
When a man and a woman live together as husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired by either or both of them through their work or
industry or their wages and salaries shall be governed by the rules on co-ownership.
[77]
Valdes v. RTC, Br. 102, Quezon City, 328 Phil. 1289, 1297 (1996).
[78]
Francisco v. Master Iron Works & Construction Corporation, G.R. No. 151967, February 16, 2005, 451
SCRA 494, 506.
[79]
G.R. No. 150611, June 10, 2003, 403 SCRA 678.
[80]
Id. at 686.
[81]
Id. at 679, 686-687.

Republic of the Philippines


Supreme Court
Manila
THIRD DIVISION
REPUBLIC OF THE PHILIPPINES, G.R. No. 158253
represented by the DEPARTMENT
OF PUBLIC WORKS AND HIGHWAYS,
COMMISSION ON AUDIT and THE
NATIONAL TREASURER,
Petitioner,
Present:
YNARES-SANTIAGO, J.,
(Chairperson)
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
CHICO-NAZARIO, and
NACHURA, JJ.
CARLITO LACAP, doing business
under the name and style CARWIN
CONSTRUCTION AND
CONSTRUCTION SUPPLY, Promulgated:
Respondent. March 2, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Revised Rules of Court assailing the Decision [1] dated April 28, 2003
of the Court of Appeals (CA) in CA-G.R. CV No. 56345 which affirmed
with modification the Decision[2] of the Regional Trial Court, Branch 41, San
Fernando, Pampanga (RTC) in Civil Case No. 10538, granting the complaint
for Specific Performance and Damages filed by Carlito Lacap (respondent)
against the Republic of the Philippines (petitioner).
The factual background of the case is as follows:

The District Engineer of Pampanga issued and duly published an


Invitation To Bid dated January 27, 1992. Respondent, doing business under
the name and style CarwinConstruction and Construction Supply
(Carwin Construction), was pre-qualified together with two other
contractors. Since respondent submitted the lowest bid, he was awarded the
contract for the concreting of Sitio 5 Bahay Pare.[3] On November 4, 1992, a
Contract Agreement was executed by respondent and petitioner.[4] On
September 25, 1992, District Engineer Rafael S. Ponio issued a Notice to
Proceed with the concreting of Sitio 5 Bahay Pare.[5] Accordingly,
respondent undertook the works, made advances for the purchase of the
materials and payment for labor costs.[6]
On October 29, 1992, personnel of the Office of the District Engineer
of San Fernando, Pampanga conducted a final inspection of the project and
found it 100% completed in accordance with the approved plans and
specifications. Accordingly, the Office of the District Engineer issued
Certificates of Final Inspection and Final Acceptance.[7]
Thereafter, respondent sought to collect payment for the completed
project.[8] The DPWH prepared the Disbursement Voucher in favor of
petitioner.[9] However, the DPWH withheld payment from respondent after
the District Auditor of the Commission on Audit (COA) disapproved the
final release of funds on the ground that the contractors license of
respondent had expired at the time of the execution of the contract. The
District Engineer sought the opinion of the DPWH Legal Department on
whether the contracts of Carwin Construction for various Mount Pinatubo
rehabilitation projects were valid and effective although its contractors
license had already expired when the projects were contracted.[10]
In a Letter-Reply dated September 1, 1993, Cesar D. Mejia, Director
III of the DPWH Legal Department opined that since Republic Act No. 4566
(R.A. No. 4566), otherwise known as the Contractors License Law, does not
provide that a contract entered into after the license has expired is void and
there is no law which expressly prohibits or declares void such contract, the
contract is enforceable and payment may be paid, without prejudice to any
appropriate administrative liability action that may be imposed on the
contractor and the government officials or employees concerned.[11]
In a Letter dated July 4, 1994, the District Engineer requested
clarification from the DPWH Legal Department on whether Carwin
Construction should be paid for works accomplished despite an expired
contractors license at the time the contracts were executed.[12]

In a First Indorsement dated July 20, 1994, Cesar D. Mejia, Director


III of the Legal Department, recommended that payment should be made to
Carwin Construction, reiterating his earlier legal opinion. [13] Despite such
recommendation for payment, no payment was made to respondent.
Thus, on July 3, 1995, respondent filed the complaint for Specific
Performance and Damages against petitioner before the RTC.[14]
On September 14, 1995, petitioner, through the Office of the Solicitor
General (OSG), filed a Motion to Dismiss the complaint on the grounds that
the complaint states no cause of action and that the RTC had no jurisdiction
over the nature of the action since respondent did not appeal to the COA the
decision of the District Auditor to disapprove the claim.[15]
Following the submission of respondents Opposition to Motion to
Dismiss,[16] the RTC issued an Order dated March 11, 1996 denying the
Motion to Dismiss.[17] The OSG filed a Motion for Reconsideration[18] but it
was likewise denied by the RTC in its Order dated May 23, 1996.[19]
On August 5, 1996, the OSG filed its Answer invoking the defenses of
non-exhaustion of administrative remedies and the doctrine of non-suability
of the State.[20]
Following trial, the RTC rendered on February 19, 1997 its Decision,
the dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing consideration,
judgment is hereby rendered in favor of the plaintiff and against the
defendant, ordering the latter, thru its District Engineer at Sindalan, San
Fernando, Pampanga, to pay the following:
a) P457,000.00 representing the contract for the concreting
project
of Sitio 5
road,
Bahay
Pare, Candaba, Pampanga plus interest
at 12% from demand until fully paid;
and
b) The costs of suit.
SO ORDERED.[21]

The RTC held that petitioner must be required to pay the contract
price since it has accepted the completed project and enjoyed the benefits
thereof; to hold otherwise would be to overrun the long standing and

consistent pronouncement against enriching oneself at the expense of


another.[22]
Dissatisfied, petitioner filed an appeal with the CA. [23] On April 28,
2003, the CA rendered its Decision sustaining the Decision of the RTC. It
held that since the case involves the application of the principle of estoppel
against the government which is a purely legal question, then the principle
of exhaustion of administrative remedies does not apply; that by its actions
the government is estopped from questioning the validity and binding effect
of the Contract Agreement with the respondent; that denial of payment to
respondent on purely technical grounds after successful completion of the
project is not countenanced either by justice or equity.
The CA rendered herein the assailed Decision dated April 28, 2003,
the dispositive portion of which reads:

WHEREFORE, the decision of the lower court is hereby


AFFIRMED with modification in that the interest shall be six percent
(6%) per annum computed from June 21, 1995.
SO ORDERED.[24]

Hence, the present petition on the following ground:


THE COURT OF APPEALS ERRED IN NOT FINDING THAT
RESPONDENT HAS NO CAUSE OF ACTION AGAINST
PETITIONER, CONSIDERING THAT:
(a) RESPONDENT FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES; AND
(b) IT IS THE COMMISSION ON AUDIT WHICH HAS THE
PRIMARY
JURISDICTION
TO
RESOLVE
RESPONDENTS MONEY CLAIM AGAINST THE
GOVERNMENT.[25]

Petitioner contends that respondents recourse to judicial action was


premature since the proper remedy was to appeal the District Auditors
disapproval of payment to the COA, pursuant to Section 48, Presidential
Decree No. 1445 (P.D. No. 1445), otherwise known as the Government
Auditing Code of the Philippines; that the COA has primary jurisdiction to
resolve
respondents
[26]
money claim against the government under Section 2(1), Article IX of the
1987 Constitution and Section 26[27] of P.D. No. 1445; that non-observance

of the doctrine of exhaustion of administrative remedies and the principle of


primary jurisdiction results in a lack of cause of action.
Respondent, on the other hand, in his Memorandum[28] limited his
discussion to Civil Code provisions relating to human relations. He submits
that equity demands that he be paid for the work performed; otherwise, the
mandate of the Civil Code provisions relating to human relations would be
rendered nugatory if the State itself is allowed to ignore and circumvent the
standard of behavior it sets for its inhabitants.
The present petition is bereft of merit.
The general rule is that before a party may seek the intervention of the
court, he should first avail of all the means afforded him by administrative
processes.[29] The issues which administrative agencies are authorized to
decide should not be summarily taken from them and submitted to a court
without first giving such administrative agency the opportunity to dispose of
the same after due deliberation.[30]
Corollary to the doctrine of exhaustion of administrative remedies is
the doctrine of primary jurisdiction; that is, courts cannot or will not
determine a controversy involving a question which is within the jurisdiction
of the administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical and intricate
matters of fact.[31]
Nonetheless, the doctrine of exhaustion of administrative remedies
and the corollary doctrine of primary jurisdiction, which are based on sound
public policy and practical considerations, are not inflexible rules. There are
many accepted exceptions, such as: (a) where there is estoppel on the part of
the party invoking the doctrine; (b) where the challenged administrative act
is patently illegal, amounting to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will irretrievably prejudice
the complainant; (d) where the amount involved is relatively small so as to
make the rule impractical and oppressive; (e) where the question involved
is purely legal and will ultimately have to be decided by the courts of
justice;[32] (f) where judicial intervention is urgent; (g) when its application
may cause great and irreparable damage; (h) where the controverted acts
violate due process; (i) when the issue of non-exhaustion of administrative
remedies has been rendered moot;[33] (j) when there is no other plain, speedy
and adequate remedy; (k) when strong public interest is involved; and, (l)

in quo warranto proceedings.[34] Exceptions (c) and (e) are applicable to the
present case.
Notwithstanding the legal opinions of the DPWH Legal Department
rendered in 1993 and 1994 that payment to a contractor with an expired
contractors license is proper, respondent remained unpaid for the completed
work despite repeated demands. Clearly, there was unreasonable delay and
official inaction to the great prejudice of respondent.
Furthermore, whether a contractor with an expired license at the time
of the execution of its contract is entitled to be paid for completed projects,
clearly is a pure question of law. It does not involve an examination of the
probative value of the evidence presented by the parties. There is a question
of law when the doubt or difference arises as to what the law is on a certain
state of facts, and not as to the truth or the falsehood of alleged facts. [35] Said
question at best could be resolved only tentatively by the administrative
authorities. The final decision on the matter rests not with them but with the
courts of justice. Exhaustion of administrative remedies does not apply,
because nothing of an administrative nature is to be or can be done.[36] The
issue does not require technical knowledge and experience but one that
would involve the interpretation and application of law.
Thus, while it is undisputed that the District Auditor of the COA
disapproved respondents claim against the Government, and, under Section
48[37] of P.D. No. 1445, the administrative remedy available to respondent is
an appeal of the denial of his claim by the District Auditor to the COA itself,
the Court holds that, in view of exceptions (c) and (e) narrated above, the
complaint for specific performance and damages was not prematurely filed
and within the jurisdiction of the RTC to resolve, despite the failure to
exhaust administrative remedies. As the Court aptly stated in Rocamora v.
RTC-Cebu (Branch VIII):[38]
The plaintiffs were not supposed to hold their breath and wait until
the Commission on Audit and the Ministry of Public Highways had acted
on the claims for compensation for the lands appropriated by the
government. The road had been completed; the Pope had come and gone;
but the plaintiffs had yet to be paid for the properties taken from
them. Given this official indifference, which apparently would continue
indefinitely, the private respondents had to act to assert and protect their
interests.[39]

On the question of whether a contractor with an expired license is


entitled to be paid for completed projects, Section 35 of R.A. No. 4566
explicitly provides:
SEC. 35. Penalties. Any contractor who, for a price, commission,
fee or wage, submits or attempts to submit a bid to construct, or contracts
to or undertakes to construct, or assumes charge in a supervisory capacity
of a construction work within the purview of this Act, without first
securing a license to engage in the business of contracting in this country;
or who shall present or file the license certificate of another, give false
evidence of any kind to the Board, or any member thereof in obtaining a
certificate or license, impersonate another, or use an expired or revoked
certificate or license, shall be deemed guilty of misdemeanor, and shall,
upon conviction, be sentenced to pay a fine of not less than five hundred
pesos but not more than five thousand pesos. (Emphasis supplied)

The plain meaning rule or verba legis in statutory construction is that


if the statute is clear, plain and free from ambiguity, it must be given its
literal meaning and applied without interpretation. [40] This rule derived from
the maxim Index animi sermo est (speech is the index of intention) rests on
the valid presumption that the words employed by the legislature in a statute
correctly express its intention or will and preclude the court from construing
it differently. The legislature is presumed to know the meaning of the
words, to have used words advisedly, and to have expressed its intent by use
of such words as are found in the statute.[41] Verba legis non est recedendum,
or from the words of a statute there should be no departure.[42]
The wordings of R.A. No. 4566 are clear. It does not declare,
expressly or impliedly, as void contracts entered into by a contractor whose
license had already expired. Nonetheless, such contractor is liable for
payment of the fine prescribed therein. Thus, respondent should be paid for
the projects he completed. Such payment, however, is without prejudice to
the payment of the fine prescribed under the law.
Besides, Article 22 of the Civil Code which embodies the
maxim Nemo ex alterius incommode debet lecupletari (no man ought to be
made rich out of anothers injury) states:
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground, shall
return the same to him.

This article is part of the chapter of the Civil Code on Human Relations, the
provisions of which were formulated as basic principles to be observed for
the rightful relationship between human beings and for the stability of the

social order, x x x designed to indicate certain norms that spring from the
fountain of good conscience, x x x guides human conduct [that] should run
as golden threads through society to the end that law may approach its
supreme ideal which is the sway and dominance of justice. [43] The rules
thereon apply equally well to the Government.[44] Since respondent had
rendered services to the full satisfaction and acceptance by petitioner, then
the former should be compensated for them. To allow petitioner to acquire
the finished project at no cost would undoubtedly constitute
unjust enrichment
for
the
petitioner
to
the
prejudice
of
respondent. Such unjust enrichment is not allowed by law.
WHEREFORE, the present petition is DENIED for lack of merit. The
assailed Decision of the Court of Appeals dated April 28, 2003 in CA-G.R.
CV No. 56345 isAFFIRMED. No pronouncement as to costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

(On Leave)
ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

On Leave.
Penned by Associate Justice Rosmari D. Carandang and concurred in by Associate Justices Conrado M.
Vasquez, Jr. and Mercedes Gozo-Dadole, CA rollo, p. 167.
[2]
Original Records, p. 120.
[3]
Id. at 7.
[4]
Id. at 8.
[5]
Id. at 12.
[6]
CA rollo, p. 268.
[7]
Original Records, p. 12-A.
[8]
Id. at 13.
[9]
Id. at 14.
[10]
Id. at 15.
[11]
Ibid.
[12]
Id. at 16.
[13]
Id.
[14]
Id. at 1.
[15]
Id. at 37.
[16]
Id. at 48.
[17]
Id. at 50.
[18]
Id. at 58.
[19]
Id. at 67.
[20]
Id. at 78.
[21]
Id. at 125.
[22]
Id. at 124-125.
[1]

[23]

CA rollo, p. 17.
Id. at 273.
[25]
Id. at 33.
[26]
SEC. 2 (1) The Commission on Audit shall have the power, authority, and duty to examine, audit and
settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled corporations with
original charters, and on a post-audit basis: (a) constitutional bodies, commission and offices that
have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and
universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d)
such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through
the Government, which are required by law or the granting institution to submit to such audit as a
condition of subsidy or equity. However, where the internal control system of the audited agencies
is inadequate, the Commission may adopt such measures, including temporary or special preaudit, as are necessary and appropriate to correct the deficiencies. It shall keep the general
accounts of the Government and for such period as may be provided by law, preserve the vouchers
and other supporting papers pertaining thereto.
[27]
Section 26. General jurisdiction. The authority and powers of the Commission shall extend to and
comprehend all matters relating to auditing procedures, systems and controls, the keeping of the
general accounts of the Government, the preservation of vouchers pertaining thereto for a period
of ten years, the examination and inspection of the books, records, and papers relating to those
accounts; and the audit and settlement of the accounts of all persons respecting funds or property
received or held by them in an accountable capacity, as well as the examination, audit, and
settlement of all debts and claims of any sort due from or owing the Government or any of its
subdivisions, agencies and instrumentalities. The said jurisdiction extends to all governmentowned or controlled corporations, including their subsidiaries, and other self-governing boards,
commissions, or agencies of the Government, and as herein prescribed, including nongovernmental entities subsidized by the government, those funded by donation through the
government, those required to pay levies of government share, and those which the government
has put up a counterpart fund or those partly funded by the government.
[28]
Rollo, p. 152.
[29]
ACWS, Ltd. v. Dumlao, 440 Phil. 787, 801-802 (2002); Zabat v. Court of Appeals, 393 Phil. 195, 206
(2000).
[30]
ACWS case, id. at 802.
[31]
Paloma v. Mora, G.R. No. 157783, September 23, 2005, 470 SCRA 711, 725; Fabia v. Court of Appeals,
437 Phil. 389, 403 (2002).
[32]
Rocamora v. Regional Trial Court-Cebu (Branch VIII), No. L-65037, November 23, 1988, 167 SCRA
615, 623.
[33]
Carale v. Abarintos, 336 Phil. 126, 137 (1997).
[34]
Castro v. Sec. Gloria, 415 Phil. 645, 651-652 (2001).
[35]
Castro v. Sec. Gloria case, id. at 652.
[36]
Espina v. Court of Appeals, 356 Phil. 15, 21 (1998); Prudential Bank v. Gapultos, G.R. Nos. 41835 &
49293, January 19, 1990, 181 SCRA 159, 168.
[37]
Section 48. Appeal from the decision of auditors. Any person aggrieved by the decision of an auditor of
any government agency in the settlement of account or claim may within six months from receipt
of a copy of the decision appeal in writing to the Commission.
[38]
Supra note 32.
[39]
Id. at 624-625.
[40]
Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 15,
2005, 456 SCRA 414, 443; National Federation of Labor v. National Labor Relations
Commission, 383 Phil. 910, 918 (2000); Ruben E. Agpalo, Statutory Construction, 2003 Ed., p.
124.
[41]
Southern Cross Cement Corporation v. Philippine Cement Manufacturers Corporation, G.R. No.
158540, July 8, 2004, 434 SCRA 65, 93; Republic v. Court of Appeals, 359 Phil. 530, 602 (2000).
[42]
Enjay, Inc. v. National Labor Relations Commission, 315 Phil. 648, 656 (1995); Globe-Mackay Cable
and Radio Corporation v. National Labor Relations Commission, G.R. No. 82511, March 3, 1992,
206 SCRA 701, 711.
[43]
Advanced Foundation Construction Systems Corporation v. New World Properties and Ventures, Inc.,
G.R. Nos. 143154 & 143177, June 21, 2006, 491 SCRA 557, 578; Security Bank & Trust Co. v.
Court of Appeals, 319 Phil. 312, 317 (1995), citing Report of the Code Commission, p. 39, cited in
Padilla, Ambrosio, Civil Code Annotated, Vol. 1, 1975.
[44]
Palma Development Corp. v. Municipality of Malangas, Zamboanga Del Sur, 459 Phil. 1042, 1050
(2003); Republic v. Court of Appeals, No. L-31303-04, May 31, 1978, 83 SCRA 453, 480.
[24]

SECOND DIVISION
ERNESTO RAMAS G.R. No. 146322
UYPITCHING and RAMAS
UYPITCHING SONS, INC.,
Petitioners, Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.
ERNESTO QUIAMCO,
Respondent. Promulgated:
December 6, 2006
x-------------------------------------------------x

CORONA, J.:

DECISION

Honeste vivere,
non alterum laedere et jus suum cuique tribuere. To

live

virtuously, not to injure others and to give everyone his


due. These supreme norms of justice are the underlying
principles of law and order in society. We reaffirm them in
this petition for review on certiorari assailing the July 26,
2000 decision[1] and October 18, 2000 resolution of the
Court of Appeals (CA) in CA-G.R. CV No. 47571.
In 1982, respondent Ernesto C. Quiamco was approached by
Juan Davalan,[2] Josefino Gabutero and

Raul Generoso to

amicably settle the civil aspect of a criminal case for


robbery[3] filed by Quiamco against them. They surrendered
to him a red Honda XL-100 motorcycle and a photocopy of

its certificate of registration. Respondent asked for the


original certificate of registration but the three accused
never came to see him again. Meanwhile, the motorcycle
was parked in an open space inside respondents business
establishment, Avesco-AVNE

Enterprises,

where

it

was

visible and accessible to the public.


It turned out that, in October 1981, the motorcycle had
been

sold

on

installment

petitioner Ramas Uypitching Sons,


corporation

managed

basis
Inc.,

by

to Gabutero by
a

family-owned

petitioner

Atty.

Ernesto Ramas Uypitching. To secure its payment, the


motorcycle was mortgaged to petitioner corporation.[4]
When Gabutero could

no

longer

pay

the

installments, Davalan assumed the obligation and continued


the

payments.

In

however, Davalan stopped


installments

September
paying

and

the

1982,
remaining

told petitioner

corporations collector, Wilfredo Verao, that the motorcycle


had allegedly been taken by respondents men.
Nine years later, on January 26, 1991, petitioner Uypitching,
accompanied

by

policemen,[5] went

to Avesco-AVNE

Enterprises to recover the motorcycle. The leader of the


police team, P/Lt. Arturo Vendiola, talked to the clerk in
charge and asked for respondent. While P/Lt. Vendiola and
the clerk were talking, petitioner Uypitching paced back
and forth inside the establishment uttering Quiamco is a
thief of a motorcycle.
On learning that respondent was not in Avesco-AVNE
Enterprises, the policemen left to look for respondent in his
residence

while

petitioner Uypitching stayed

in

the

establishment to take photographs of the motorcycle.


Unable to find respondent, the policemen went back
to Avesco-AVNE

Enterprises

petitioner Uypitchings instruction

and,

and

over

the

on
clerks

objection, took the motorcycle.


On February 18, 1991, petitioner Uypitching filed a criminal
complaint for qualified theft and/or violation of the AntiFencing Law[6] against respondent in the Office of the City
Prosecutor

of Dumaguete City.[7] Respondent

moved

for

dismissal because the complaint did not charge an offense


as he had neither stolen nor bought the motorcycle. The
Office of the City Prosecutor dismissed the complaint [8] and
denied

petitioner Uypitchings subsequent

motion

for

reconsideration.
Respondent filed an action for damages against petitioners
in the RTC of Dumaguete City, Negros Oriental, Branch 37.
[9]

He sought to hold the petitioners liable for the following:

(1) unlawful taking of the motorcycle; (2) utterance of a


defamatory remark (that respondent was a thief) and (3)
precipitate filing of a baseless and malicious complaint.
These acts humiliated and embarrassed the respondent and
injured his reputation and integrity.
On

July

30,

1994,

the

trial

court

rendered

decision[10] finding that petitioner Uypitching was motivated


with malice and ill will when he called respondent a thief,
took the motorcycle in an abusive manner and filed a
baseless complaint for qualified theft and/or violation of the
Anti-Fencing Law. Petitioners acts were found to be
contrary to Articles 19[11] and 20[12] of the Civil Code. Hence,
the

trial

court

held

petitioners

liable

to

respondent

for P500,000 moral damages, P200,000 exemplary damages


and P50,000 attorneys fees plus costs.
Petitioners appealed the RTC decision but the CA
affirmed

the

trial

courts

decision

with

modification,

reducing the award of moral and exemplary damages


to P300,000and P100,000, respectively.[13] Petitioners sought
reconsideration but it was denied. Thus, this petition.
In their petition and memorandum, petitioners submit
that the sole (allegedly) issue to be resolved here is whether
the filing of a complaint for qualified theft and/or violation
of the Anti-Fencing Law in the Office of the City Prosecutor
warranted

the

award

of

moral

damages,

exemplary

damages, attorneys fees and costs in favor of respondent.


Petitioners suggestion is misleading. They were held
liable for damages not only for instituting a groundless
complaint against respondent but also for making a
slanderous remark and for taking the motorcycle from
respondents establishment in an abusive manner.
CORRECTNESS
THE FINDINGS
THE RTC AND CA

OF
OF

As they never questioned the findings of the RTC and


CA that malice and ill will attended not only the public
imputation of a crime to respondent[14] but also the taking of
the motorcycle, petitioners were deemed to have accepted
the correctness of such findings. This alone was sufficient to
hold petitioners liable for damages to respondent.

Nevertheless, to address petitioners concern, we also


find that the trial and appellate courts correctly ruled that
the filing of the complaint was tainted with malice and bad
faith. Petitioners themselves in fact described their action
as a precipitate act.[15] Petitioners were bent on portraying
respondent as a thief. In this connection, we quote with
approval the following findings of the RTC, as adopted by
the CA:
x x x There was malice or ill-will [in filing the
complaint before the City Prosecutors Office]
because Atty. Ernesto Ramas Uypitching knew or
ought to have known as he is a lawyer, that there
was no probable cause at all for filing a criminal
complaint for qualified theft and fencing activity
against [respondent]. Atty. Uypitchinghad no
personal knowledge that [respondent] stole the
motorcycle in question. He was merely told by his
bill
collector
([i.e.]
the
bill
collector
of Ramas UypitchingSons,
Inc.)
[,] Wilfredo Verao[,] that Juan Dabalan will [no
longer] pay the remaining installment(s) for the
motorcycle because the motorcycle was taken by
the men of [respondent]. It must be noted that
the term used by Wilfredo Verao in informing
Atty. Ernesto Ramas Uypitching of the refusal of
Juan Dabalan to
pay
for
the
remaining
installment was []taken[], not []unlawfully taken[]
or stolen. Yet, despite the double hearsay, Atty.
Ernesto Ramas Uypitching not only executed the
[complaint-affidavit]
wherein
he
named
[respondent] as the suspect of the stolen
motorcycle but also charged [respondent] of
qualified theft and fencing activity before the
City [Prosecutors] Office of Dumaguete. The
absence of probable cause necessarily signifies
the presence of malice. What is deplorable in all
these is that Juan Dabalan, the owner of the
motorcycle, did not accuse [respondent] or the
latters men of stealing the motorcycle[,] much
less bother[ed] to file a case for qualified theft
before the authorities. That Atty. Uypitchings act
in charging [respondent] with qualified theft and

fencing activity is tainted with malice is also


shown by his answer to the question of
Cupid Gonzaga[16] [during
one
of
their
conversations] - why should you still file a
complaint? You have already recovered the
motorcycle[:] Aron motagam ang kawatan ug mot
or. (To teach a lesson to the thief of motorcycle.)
[17]

Moreover, the existence of malice, ill will or bad faith is


a factual matter. As a rule, findings of fact of the trial court,
when affirmed by the appellate court, are conclusive on this
Court. We see no compelling reason to reverse the findings
of the RTC and the CA.
PETITIONERS
ABUSED
THEIR
RIGHT OF RECOVERY
AS MORTGAGEE(S)

Petitioners claim that they should not be held liable


for petitioner corporations exercise of its right as sellermortgagee to recover the mortgaged vehicle preliminary to
the enforcement of its right to foreclose on the mortgage in
case of default. They are clearly mistaken.
True, a mortgagee may take steps to recover the
mortgaged property to enable it to enforce or protect its
foreclosure right thereon. There is, however, a well-defined
procedure for the recovery of possession of mortgaged
property: if a mortgagee is unable to obtain possession of a
mortgaged property for its sale on foreclosure, he must
bring a civil action either to recover such possession as a
preliminary

step

foreclosure.[18]

to

the

sale,

or

to

obtain

judicial

Petitioner corporation failed to bring the proper civil


action

necessary

to

acquire

legal

possession

of

the

motorcycle. Instead, petitioner Uypitching descended on


respondents establishment with his policemen and ordered
the seizure of the motorcycle without a search warrant or
court order. Worse, in the course of the illegal seizure of the
motorcycle,

petitioner Uypitching even

mouthed

slanderous statement.
No doubt, petitioner corporation, acting through its copetitioner Uypitching,

blatantly

disregarded

the

lawful

procedure for the enforcement of its right, to the prejudice


of respondent. Petitioners acts violated the law as well as
public morals, and transgressed the proper norms of human
relations.
The basic principle of human relations, embodied in
Article 19 of the Civil Code, provides:
Art. 19. Every person must in the exercise of
his rights and in the performance of his duties,
act with justice, give every one his due, and
observe honesty and good faith.

Article 19, also known as the principle of abuse of


right, prescribes that a person should not use his right
unjustly or contrary to honesty and good faith, otherwise he
opens himself to liability.[19] It seeks to preclude the use of,
or the tendency to use, a legal right (or duty) as a means to
unjust ends.
There is an abuse of right when it is exercised solely to
prejudice or injure another.[20] The exercise of a right must
be in accordance with the purpose for which it was

established and must not be excessive or unduly harsh;


there must be no intention to harm another.[21] Otherwise,
liability for damages to the injured party will attach.
In this case, the manner by which the motorcycle was
taken at petitioners instance was not only attended by bad
faith but also contrary to the procedure laid down by law.
Considered in conjunction with the defamatory statement,
petitioners exercise of the right to recover the mortgaged
vehicle was utterly prejudicial and injurious to respondent.
On the other hand, the precipitate act of filing an unfounded
complaint could not in any way be considered to be in
accordance with the purpose for which the right to
prosecute a crime was established. Thus, the totality of
petitioners

actions

showed

calculated

design

to

embarrass, humiliate and publicly ridicule respondent.


Petitioners acted in an excessively harsh fashion to the
prejudice

of

respondent.

Contrary

to

law,

petitioners

willfully caused damage to respondent. Hence, they should


indemnify him.[22]
WHEREFORE, the petition is hereby DENIED. The
July 26, 2000 decision and October 18, 2000 resolution of
the

Court

of

Appeals

in

CA-G.R.

CV

No.

47571

areAFFIRMED.
Triple

costs

against

petitioners,

considering

that

petitioner Ernesto Ramas Uypitching is a lawyer and an


officer of the court, for his improper behavior.
SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA


Associate Justice Associate Justice
CANCIO C. GARCIA
Associate Justice
ATTESTATION

ATTEST THAT THE CONCLUSIONS IN THE ABOVE DECISION


WERE REACHED IN CONSULTATION BEFORE THE CASE WAS
ASSIGNED TO THE WRITER OF THE OPINION OF THE COURTS
DIVISION.

REYNATO S. PUNO
Associate Justice
Chairperson, Second Division
CERTIFICATION

PURSUANT TO ARTICLE VIII, SECTION 13 OF THE


CONSTITUTION, AND THE DIVISION CHAIRPERSONS ATTESTATION,
I CERTIFY THAT THE CONCLUSIONS IN THE ABOVE DECISION HAD
BEEN REACHED IN CONSULTATION BEFORE THE CASE WAS
ASSIGNED TO THE WRITER OF THE OPINION OF THE COURTS
DIVISION.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]

Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Presiding Justice Salome A.
Montoya (retired) and Associate Justice Romeo J. Callejo, Sr. (now a member of the Supreme
Court) of the First Division of the Court of Appeals; rollo, pp. 26-36.

[2]

Juan Dabalan in some parts of the records.

[3]

The case was filed in the Regional Trial Court (RTC) of Negros Oriental, Dumaguete City, Branch 31
where it was docketed as Criminal Case No. 5630. On March 3, 1986, the trial court (through
Judge Rolando R. Villaraza) convicted Davalanand Generoso and acquitted Gabutero.

[4]

The certificate of registration issued to Gabutero bore the notation Mortgaged.

[5]

These policemen were P/Lt. Arturo Vendiola, Pfc. Damiola, Capt. Tayco, Pat. Romeo Tan and
Pat. Catigtig.

[6]

Presidential Decree No. 1612.

[7]

Docketed as I.S. No. 91-74.

[8]

Resolution dated June 14, 1991; rollo, pp. 147-151.

[9]

Presided by Judge Temistocles B. Diez. The case was docketed as Civil Case No. 10492.

[10]

Penned by Judge Temistocles B. Diez.

[11]

Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with
justice, give every one his due, and observe honesty and good faith.

[12]

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall
indemnify the latter for the same.

[13]

The modification was based on the principle that moral and exemplary damages are not imposed to
enrich a party.

[14]

In fact, malice is presumed from a defamatory imputation.

[15]

Petition, p. 5; rollo, p.17.

[16]

One of respondents witnesses.

[17]

CA Decision, supra note 1.

[18]

Filinvest Credit Corporation v. Court of Appeals, G.R. No. 115902, 27 September 1995, 248 SCRA 549.

[19]

Hongkong Shanghai Banking Corporation, Ltd. v. Catalan, G.R. Nos. 159590-91, 18 October 2004, 440
SCRA 498.

[20]

Id.

[21]

Id.

[22]

CIVIL CODE, Art. 20.

FIRST DIVISION

MA. ARMIDA PEREZ-FERRARIS, G.R. No. 162368


Petitioner,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.

BRIX FERRARIS,
Respondent. Promulgated:

July 17, 2006


x ---------------------------------------------------------------------------------------x

RESOLUTION
YNARES-SANTIAGO, J.:

This resolves the motion for reconsideration filed by


petitioner Ma. Armida Perez-Ferraris of the Resolution
dated June 9, 2004 denying the petition for review on
certiorari of the Decision and Resolution of the Court of
Appeals dated April 30, 2003 and February 24, 2004,

respectively, for failure of the petitioner to sufficiently show


that the Court of Appeals committed any reversible error.

On February 20, 2001, the Regional Trial Court


of Pasig City, Branch 151 rendered a Decision [1] denying the
petition for declaration of nullity of petitioners marriage
with Brix Ferraris. The trial court noted that suffering from
epilepsy does not amount to psychological incapacity under
Article 36 of the Civil Code and the evidence on record were
insufficient to prove infidelity. Petitioners motion for
reconsideration was denied in an Order[2] dated April 20,
2001 where the trial court reiterated that there was no
evidence that respondent is mentally or physically ill to such
an extent that he could not have known the obligations he
was assuming, or knowing them, could not have given valid
assumption thereof.

Petitioner appealed to the Court of Appeals which


affirmed[3] in toto the judgment of the trial court. It held that
the evidence on record did not convincingly establish that
respondent was suffering from psychological incapacity or
that his defects were incurable and already present at the
inception of the marriage.[4] The Court of Appeals also found
that Dr. Dayans testimony failed to establish the substance
of respondents psychological incapacity; that she failed to
explain how she arrived at the conclusion that the
respondent has a mixed personality disorder; that she failed
to clearly demonstrate that there was a natal or
supervening disabling factor or an adverse integral element
in respondents character that effectively incapacitated him
from accepting and complying with the essential marital
obligations.[5]

Petitioners motion for reconsideration was denied [6] for


lack of merit; thus, she filed a petition for review on
certiorari with this Court. As already stated, the petition for
review was denied for failure of petitioner to show that the
appellate tribunal committed any reversible error.

Petitioner filed the instant motion for reconsideration.


[7]
The Court required respondent Brix Ferraris to file
comment[8] but failed to comply; thus, he is deemed to have
waived the opportunity to file comment. Further, the Court
directed the Office of the Solicitor General (OSG) to
comment on petitioners motion for reconsideration which it
complied on March 2, 2006.

After considering the arguments of both the petitioner


and the OSG, the Court resolves to deny petitioners motion
for reconsideration.

The issue of whether or not psychological incapacity


exists in a given case calling for annulment of marriage
depends crucially, more than in any field of the law, on the
facts of the case.[9] Such factual issue, however, is beyond
the province of this Court to review. It is not the function of
the Court to analyze or weigh all over again the evidence or
premises supportive of such factual determination. [10] It is a
well-established principle that factual findings of the trial
court, when affirmed by the Court of Appeals, are binding
on this Court,[11] save for the most compelling and cogent
reasons, like when the findings of the appellate court go
beyond the issues of the case, run contrary to the
admissions of the parties to the case, or fail to notice
certain relevant facts which, if properly considered, will
justify a different conclusion; or when there is a

misappreciation of facts,[12] which are unavailing in the


instant case.

The term psychological incapacity to be a ground for the nullity of


marriage under Article 36 of the Family Code, refers to a serious
psychological illness afflicting a party even before the celebration of the
marriage. It is a malady so grave and so permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond one is
about to assume.[13] As all people may have certain quirks and
idiosyncrasies, or isolated characteristics associated with certain personality
disorders, there is hardly any doubt that the intendment of the law has been
to confine the meaning of psychological incapacity to the most serious cases
of personality disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage. [14] It is for this
reason that the Court relies heavily on psychological experts for its
understanding of the human personality. However, the root cause must be
identified as a psychological illness and its incapacitating nature must be
fully explained,[15] which petitioner failed to convincingly demonstrate.

As aptly held by the Court of Appeals:


Simply put, the chief and basic consideration
in the resolution of marital annulment cases is the
presence of evidence that can adequately
establish
respondents
psychological
condition.Here, appellant contends that there is
such evidence. We do not agree. Indeed, the
evidence on record did not convincingly establish
that respondent was suffering from psychological
incapacity. There is absolutely no showing that his
defects were already present at the inception of
the marriage, or that those are incurable.
Quite apart from being plainly self-serving, petitioners evidence
showed that respondents alleged failure to perform his so-called marital
obligations was not at all a manifestation of some deep-seated, grave,
permanent and incurable psychological malady. To be sure, the couples
relationship before the marriage and even during their brief union (for well
about a year or so) was not all bad. During that relatively short period of
time, petitioner was happy and contented with her life in the company of
respondent. In fact, by petitioners own reckoning, respondent was a
responsible and loving husband. x x x. Their problems began when

petitioner started doubting respondents fidelity. It was only when they


started fighting about the calls from women that respondent began to
withdraw into his shell and corner, and failed to perform his so-called
marital obligations. Respondent could not understand petitioners lack of
trust in him and her constant naggings. He thought her suspicions
irrational. Respondent could not relate to her anger, temper and jealousy. x
x x.

xxxx

At any rate, Dr. Dayan did not explain how she arrived at her
diagnosis that respondent has a mixed personality disorder called schizoid,
and why he is the dependent and avoidant type.In fact, Dr. Dayans
statement that one suffering from such mixed personality disorder is
dependent on others for decision x x x lacks specificity; it seems to belong
to the realm of theoretical speculation. Also, Dr. Dayans information that
respondent had extramarital affairs was supplied by the petitioner
herself. Notably, when asked as to the root cause of respondents alleged
psychological incapacity, Dr. Dayans answer was vague, evasive and
inconclusive. She replied that such disorder can be part of his family
upbringing x x x. She stated that there was a history of respondents parents
having difficulties in their relationship. But this input on the supposed
problematic history of respondents parents also came from petitioner. Nor
did Dr. Dayan clearly demonstrate that there was really a natal or
supervening disabling factor on the part of respondent, or an adverse
integral element in respondents character that effectively incapacitated
him from accepting, and, thereby complying with, the essential marital
obligations. Of course, petitioner likewise failed to prove that respondents
supposed psychological or mental malady existed even before the
marriage. All these omissions must be held up against petitioner, for the
reason that upon her devolved the onus of establishing nullity of the
marriage. Indeed, any doubt should be resolved in favor of the validity of
the marriage and the indissolubility of the marital vinculum.[16]

We find respondents alleged mixed personality


disorder, the leaving-the-house attitude whenever they
quarreled, the violent tendencies during epileptic attacks,
the sexual infidelity, the abandonment and lack of support,
and his preference to spend more time with his band mates
than his family, are not rooted on some debilitating
psychological condition but a mere refusal or unwillingness
to assume the essential obligations of marriage.

In Republic v. Court of Appeals,[17] where therein respondent preferred


to spend more time with his friends than his family on whom he squandered
his money, depended on his parents for aid and assistance, and was dishonest
to his wife regarding his finances, the Court held that the psychological
defects
spoken
of
were
more
of
a difficulty, if
not
outright refusal or neglect in the performance of some marital obligations
and that a mere showing of irreconcilable differences and conflicting
personalities in no wise constitute psychological incapacity; it is not enough
to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to beincapable of
doing so, due to some psychological, not physical, illness.
Also, we held in Hernandez v. Court of Appeals[18] that habitual
alcoholism, sexual infidelity or perversion, and abandonment do not by
themselves constitute grounds for declaring a marriage void based on
psychological incapacity.

While petitioners marriage with the respondent failed and appears to


be without hope of reconciliation, the remedy however is not always to have
it declared void ab initioon the ground of psychological incapacity. An
unsatisfactory marriage, however, is not a null and void marriage. [19] No less
than the Constitution recognizes the sanctity of marriage and the unity of the
family; it decrees marriage as legally inviolable and protects it from
dissolution at the whim of the parties. Both the family and marriage are to
beprotected by the state.[20]

Thus, in determining the import of psychological incapacity under


Article 36, it must be read in conjunction with, although to be taken as
distinct from Articles 35,[21] 37,[22] 38,[23] and 41[24] that would likewise, but
for different reasons, render the marriage void ab initio, or Article 45[25] that
would make the marriage merely voidable, or Article 55 that could justify a
petition for legal separation. Care must be observed so that these various
circumstances are not applied so indiscriminately as if the law were
indifferent on the matter.[26] Article 36 should not to be confused with a
divorce law that cuts the marital bond at the time the causes therefor
manifest themselves.[27] Neither it is to be equated with legal separation, in
which the grounds need not be rooted in psychological incapacity but on
physical violence, moral pressure, moral corruption, civil interdiction, drug
addiction, habitual alcoholism, sexual infidelity, abandonment and the like.
[28]

WHEREFORE, in view of the foregoing, the motion for


reconsideration
of
the
Resolution
dated June
9,
2004 denying the petition for review on certiorari for failure
of the petitioner to sufficiently show that the Court of
Appeals committed any reversible error, is DENIED WITH
FINALITY.

SO ORDERED.

CONSUELO
SANTIAGO

YNARES-

Associate Justice
WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO,
SR.
Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is


hereby certified that the conclusions in the above
Resolution were reached in consultation before the case
was assigned to the writer of the opinion of the Courts
Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]

Rollo, pp. 96-99. Penned by Judge Franchito N. Diamante.

[2]

Id. at 101.

[3]

Id. at 9-19. Penned by Associate Justice Renato C. Dacudao and concurred in by Associate Justices
Godardo A. Jacinto and Danilo B. Pine.
[4]

Id. at 17.

[5]

Id. at 18.

[6]

Id. at 7.

[7]

Id. at 208-227.

[8]

Id. at 228.

[9]

Concurring Opinion of Justice Teodoro R. Padilla in Republic v. Court of Appeals, 335 Phil. 664, 680
(1997).
[10]

Abacus Real Estate Development Center, Inc. v. Manila Banking Corporation, G.R. No. 162270, April 6,
2005, 455 SCRA 97, 106.
[11]

Domingo v. Robles, G.R. No. 153743, March 18, 2005, 453 SCRA 812, 817.

[12]

Philippine Rabbit Bus Lines, Inc. v. Macalinao, G.R. No. 141856, February 11, 2005, 451 SCRA 63, 69.

[13]

Marcos v. Marcos, 397 Phil. 840, 851 (2000).

[14]

Santos v. Court of Appeals, 310 Phil. 21, 40 (1995).

[15]

Republic v. Court of Appeals, supra note 9 at 677.

[16]

Rollo, pp. 111-113.

[17]

Supra note 9 at 669 & 674.

[18]

377 Phil. 919, 931 (1999).

[19]

Carating-Siayngco v. Siayngco, G.R. No. 158896, October 27, 2004, 441 SCRA 422, 439.

[20]

Republic v. Iyoy, G.R. No. 152577, September 21, 2005, 470 SCRA 508, 522.

[21]

Art. 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages
were contracted with either or both parties believing in good faith that the solemnizing officer had the legal
authority to do so;
(3) Those solemnized without a license, except those covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
[22]

Art. 37. Marriages between the following are incestuous and void from the beginning, whether the
relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
[23]

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between the adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other persons spouse or his
or her own spouse.
[24]

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for
four consecutive years and the spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present
must institute a summary proceeding as provided in this Code for the declaration of presumptive death of
the absentee, without prejudice to the effect of reappearance of the absent spouse.
[25]

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the
marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian
or person having substitute parental authority over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with
the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was inflicted with a sexually-transmitted disease found to be serious and appears to be
incurable.
[26]

Concurring Opinion of Justice Jose C. Vitug in Republic v. Court of Appeals, supra note 9 at 690.

[27]

Carating-Siayngco v. Siayngco, supra note 19 at 439.

[28]

Marcos v. Marcos, supra note 13.

SECOND DIVISION
REPUBLIC OF THE
PHILIPPINES,
Petitioner,

G.R. No. 168328


Present:
QUISUMBING, J., Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

- versus -

LAILA TANYAG-SAN JOSE


and MANOLITO SAN JOSE,
Respondents.

Promulgated:
February 28, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO MORALES, J.:
Respondents Laila Tanyag-San Jose (Laila) and Manolito San Jose
(Manolito) were married on June 12, 1988. Laila was 19 years and 4 months
old, while Manolito was 20 years and 10 months old.[1]
The couple begot two children: Joana Marie who was born on January
3, 1989,[2] and Norman who was born on March 14, 1997.[3]
For nine years, the couple stayed with Manolitos parents. Manolito
was jobless and was hooked to gambling and drugs. As for Laila, she sold
fish at the wet market of Taguig.[4]
On August 20, 1998, Laila left Manolito and transferred to her parents
house.[5]
On March 9, 1999, Laila filed a Petition for Declaration of Nullity of
Marriage,[6] under Article 36[7] of the Family Code on the ground of
psychological incapacity, before the Regional Trial Court (RTC)
of Pasig where it was docketed as JDRC Case No. 4862.

Testifying for Laila, Dr. Nedy Tayag, a clinical psychologist at


the National Center for Mental Health, declared that from the psychological
test and clinical interview she conducted on Laila, she found Manolito,
whom she did not personally examine, to be psychologically incapacitated to
perform the duties of a husband.
Dr. Tayags May 28, 1999 Report on the Psychological Condition of
LAILA T. SAN JOSE[8] was submitted in evidence. The pertinent portions of
the Report read:

BACKGROUND DATA & BRIEF MARITAL HISTORY:


xxxx
. . . [Lailas] association with [Manolito] started with the game
of basketball. As a youngster, petitioner often spent her free time
seeking fun in the outdoors. She was then beginning to cast her
interests on basketball games and eventually became one of the avid
spectators when a minor league was staged at their place. Respondent
happened to be one of the cagers who, with his hardcourt skills, greatly
impressed petitioner. The latter then became a fan of respondent.
Eventually acquiring the upper hand, respondent introduced himself
personally to his admirers and their initial encounter with petitioner
proved to be a milestone for both of their fates. Courtship followed and
after a short period, they were already steadies.
Savoring the momentum, petitioner and respondent decided to
formally seal their union. They entered marriage on June 12,
1989 under religious ceremonies held in Taguig. After the occasion, the
newlyweds then went on to lead a life of their own making. However,
contrary to what was expected, their marriage turned out to be rocky
right from the very start.
Claimed, respondent refused to get himself a job. Instead, he
spent most of his available time with his friends drinking intoxicating
substances and gambling activities. Petitioner was left without much
choice but to flex her muscles and venture on several areas which could
be a source of income. She tried to endure the situation with the hope
that respondent would change for the better in no time. Their first child,
Joana Marie, was born of January 3, 1989. Petitioner was apparently
happy with the birth of their first born, thinking that her presence would
make a difference in the family, particularly on the part of respondent.
Years had passed but no improvement was seen on respondents
behavior. He turned out to be worse instead and it was only later
that petitioner discovered that he was into drugs. Said, he prefers to be
with his friends rather than his own family. He seemed oblivious to the
efforts rendered by petitioner just to make ends meet. She was the
breadwinner of the family and whenever an argument occurred between

her and respondent, she often received the brunt of her husbands
irrationality. On one of such incidents, she decided to separate from
respondent. The latter however pursued her and pleaded for another
chance. He promised that he would change his behavior if only
petitioner would give him a son. Seeing his sincerity and unwilling to
give up the marriage, petitioner agreed to the compromise.
They reconciled and she did gave birth to a son, Norman, on
March of 1997. Respondent was happy but his show of good nature
was superficial. Briefly after the birth of their second child, respondent
resumed his old ways and made them even worse.
Still, petitioner remained hopeful that something will turn out
right in their union. However, with respondents continuing
irresponsibility, she realized that all her efforts proved nonsense to him.
On August 20, 1998, respondent went out of their dwelling for his
usual late night stints but he never came back the following morning.
They never lived together since.
Respondent is MANOLITO SAN JOSE, 31 years old with last
known address at 14-D Ibayo, Tipas, Taguig, Metro Manila. He is
unemployed and stayed in school only to finish his secondary
education. He was described to be a happy-go-lucky individual
spending most of his time hanging out with friends. Considered to be a
bad influence, he was into gambling, drinking sprees and prohibited
drugs as well.
xxxx
REMARKS:
Through the evaluation of test data, correlated with clinical
interviews and description of their marital plight, it is the opinion of the
undersigned that the disintegration of the marriage between petitioner
and respondent was caused primarily by the latters psychological
incapacity to perform the essential roles and obligations of a
married man and a father.
His behavioral pattern characterized mainly by constant
irresponsibility, lack of concern for the welfare of others, self-centered
orientation, absence of remorse, violent tendencies and his involvement
in activities defying social and moral ethics; suits under the
classification of Anti-Social Personality Disorder.
Such disorder is considered to be grave and is deeply
[immersed] within the system. It continues to influence the individual
until the later stage of life.[9] (Emphasis and underscoring supplied)

Branch 70 of the RTC of Pasig, by Decision of July 17, 2001,


citing Republic of the Philippines v. Court of Appeals[10] and Leouel Santos v.
CA, et al.[11] denied Lailaspetition in this wise:

In the recent case of Republic of the Philippines vs. Court of


Appeals and Roridel Olaviano Molina (268 SCRA 198), the Supreme
Court, reiterated its ruling [in] the earlier case of [Leouel] Santos vs.
Court of Appeals (240 SCRA 20), to the effect that psychological
incapacity should refer to no less than a mental (not physical incapacity
x x x) and that there is hardly any doubt that the intendment of the law
has been to confine the meaning of psychological incapacity to the
most serious cases of personality disorder clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the
marriage and that such incapacity must be characterized by (a) gravity,
(b) juridical antecedence, and (c) incurability.
Viewed in the light of the above guidelines, the present petition
must necessarily be denied.
Petitioners portrayal of respondent as jobless and
irresponsible is not enough. As the Supreme Court said in the Molina
case (supra), (I)t is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that
they must be shown to be incapable of doing so, due to some
psychological (not physical) illness.
Petitioners case is not in any way enhanced by the
psychological evaluation and assessment done by psychologist Nedy
Tayag as per her Psychological Report (Exhs. C to C-1). Although the
body of the report mentions that the respondent is affected with AntiSocial Personality Disorder, the same cannot sway this Court from its
above
disposition. There
is
no
showing
that
[Dr.]
Tayag was able to interview the respondent or any of his relatives
in order to arrive at the above conclusion. Obviously, the data upon
which the finding or conclusion was based is inadequate.
[12]
(Emphasis and underscoring supplied)

Lailas motion for reconsideration of the trial courts decision was, by


Order of November 13, 2001,[13] denied. Laila thus appealed to the Court of
Appeals which docketed it as CA G.R. CV No. 73286, faulting the trial court
in holding that she failed to comply with the guidelines enumerated
in Molina.
By Decision dated February 15, 2005,[14] the appellate court, finding
Manolito psychologically incapacitated after considering the totality of the
evidence, reversed the decision of the trial court and declared the marriage
between him and Laila void ab initio. Thus the appellate court held:
. . . We perused the records of the present case and unearthed
that the totality of the evidence presented in the present case including
the testimony of the petitioner, were enough to sustain a finding that
Manolito San Jose is psychologically incapacitated within the
contemplation of the Family Code. We believe that his (respondents)
defects were already present at the inception of the marriage or that
they are incurable. If being jobless (since the commencement of the

marriage up to the filing of the present petition) and worse, a


gambler, can hardly qualify as being mentally or physically ill what
then can We describe such acts? Are these normal manners of a
married man? We are not at all swayed that a union affirmed in
church rites and subsequently having children, are proofs that either of
the spouses is mature and responsible enough to assume marital
responsibilities.
Accordingly, We can safely conclude that said deficiency is so
grave and so permanent as to deprive one of awareness of the duties
and responsibilities of the matrimonial bond one is about to assume.
This Court, finding the gravity of the failed relationship in which the
parties found themselves trapped in its mire of unfulfilled vows and
unconsummated marital obligations, can do no less but to declare the
marriage between the herein petitioner and the respondent herein
dissolved. While the law provides that the husband and the wife are
obliged to live together, observe mutual love, respect and fidelity
([A]rticle 68 of the Family Code), however, what is there to preserve
when the other spouse is an unwilling party to the cohesion and
creation of a family as an inviolable social institution. In fine,
Laila Tanyag-San Jose must be allowed to rise from the ashes and
begin a new lifefreed from a marriage which, to Us, was hopeless from
the beginning and where the bonding could not have been possible.
xxxx
While We may not have strictly adhered to the ruling in the
Molina case in arriving at Our present conclusion We have reason to
deviate from the same. In view of the peculiar circumstances attendant
in this case, We were constrained to take exception from the Molina
case. Note that the (c) ommittee did not give any example of
psychological incapacity for the fear that the giving of examples would
limit the applicability of the provision under the principle of ejusdem
generis. Rather, the Committee would like the judge to apply the
provision on a case-to-case basis, guided by experience, the findings of
experts and researchers in psychological disciplines, and by decision of
Church tribunals which although not binding on the civil courts, may
be given persuasive effect since the provision was taken from Canon
Law. (page 37, Handbook of the Family Code of the Philippines,
Sempio-Diy, 1991 reprinted). Hence, whether or not psychological
incapacity exists is for Us to establish, as there is no hard and fast rule
in the determination of what maybe considered indicia of psychological
incapacity. To Our mind there are sufficient grounds for Us to conclude
that indeed psychological incapacity exists so as to warrant declaration
of the marriage void ab initio.[15] (Italics and underscoring in the
original; emphasis supplied)

Petitioner, Republic of the Philippines, filed a Motion for


Reconsideration[16] of the appellate courts decision which was denied, by
Resolution dated June 2, 2005,[17]hence, its present Petition for Review,
[18]
positing that:
I

IT WAS NOT PROVEN THAT MANOLITOS ALLEGED DEFECTS


ARE CONSTITUTIVE OF PSYCHOLOGICAL INCAPACITY AS
CONTEMPLATED UNDER ARTICLE 36 OF THE FAMILY CODE
AND THAT THE SAME HAS JURIDICAL ANTECEDENCE, IS
GRAVE AND INCURABLE[, AND]
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
NOT ADHERING TO THE RULING OF THE MOLINA CASE AND
THE DOCTRINE OF STARE DECISIS.[19]

Petitioner contends that Laila failed to prove that Manolito is


psychologically incapacitated to perform his marital obligations as she
merely relied on the report of Dr. Tayag; and granted that the psychological
examination of Manolito is not a requirement for a declaration of his
psychological incapacity, the totality of the evidence presented does not
show Manolitos psychological incapacity.
Petitioner further contends that the appellate court erred in believing
that the defects of Manolito already existed at the inception of the marriage
or are incurable; and in any event, belief cannot substitute for proof which
the law and jurisprudence require.
Petitioner finally contends that a deviation from the Molina ruling is
not proper in the present case.
Laila, as petitioner, had the burden of proof to show the nullity of the
marriage.
Psychological incapacity, as a ground for nullity of marriage, has been
succinctly expounded in the recent case of Ma. Armida Perez-Ferraris v.
Brix Ferraris (Ferraris),[20] thus:
The term psychological incapacity to be a ground for the nullity
of marriage under Article 36 of the Family Code, refers to a serious
psychological illness afflicting a party even before the celebration of
the marriage. It is a malady so grave and so permanent as to deprive one
of the awareness of the duties and responsibilities of the matrimonial
bond one is about to assume. As all people may have certain quirks and
idiosyncrasies, or isolated characteristics associated with certain
personality disorders, there is hardly any doubt that the intendment of the
law has been to confine the meaning of psychological incapacity to the
most serious cases of personality disorders clearly demonstrative of
an utter insensitivity or inability to give meaning and significance to
the marriage. It is for this reason that the Court relies heavily on
psychological experts for its understanding of the human personality.

However, the root cause must be identified as a psychological illness


and its incapacitating nature must be fully explained[.] (Italics in the
original; emphasis supplied)

As the earlier-quoted Report of Dr. Tayag shows, her conclusion about


Manolitos psychological incapacity was based on the information supplied
by Laila which she found to be factual. That Laila supplied the basis of her
conclusion, Dr. Tayag confirmed at the witness stand:
Q [Atty. Revilla, Jr.]: What was your conclusion, what w[ere] your
findings with respect to the respondent?
A [Dr. Tayag]: Base[d] on the narration made by [Laila], which I
found the narration to be factual, regarding her marital
relationship with the petitioner (should have been
respondent), I came up with a conclusion that respondent is
psychologically incapacitated. The one which I found in him
is his anti-social personality disorder because of the following
overt manipulations: the presence of drug, the absence of
remourse [sic], the constant incapacity in terms of maintaining
the marital relationship, the lack of concern to his family, his
self-centeredness, lack of remourse, in addition to the
womanizing, respondent which clearly connotes the defiant of
moral and personality disorder, he is tantamount to a person
under the level, under our diagnostic criteria labeled as antisocial personality disorder, sir.
Q: So you would like to impress this Court that your findings with
respect to this case were only base[d] on the information
given to you by [Laila], is that correct?
A: Yes, wherein I found the narration made by [Laila] to be factual,
sir.[21] (Emphasis supplied)

Undoubtedly, the doctors conclusion is hearsay. It is unscientific and


unreliable, so this Court declared in Choa v. Choa[22] where the assessment
of the therein party sought to be declared psychologically incapacitated was
based merely on the information communicated to the doctor by the therein
respondent-spouse:
. . . [T]he assessment of petitioner by Dr. Gauzon was based
merely on descriptions communicated to him by respondent. The
doctor never conducted any psychological examination of her. Neither
did he ever claim to have done so. In fact, his Professional Opinion
began with the statement [I]f what Alfonso Choa said about his wife
Leni is true, . . .
xxxx
Obviously, Dr. Gauzon had no personal knowledge of the
facts he testified to, as these had merely been relayed to him by

respondent. The former was working on pure suppositions and


secondhand information fed to him by one side. Consequently, his
testimony can be dismissed as unscientific and unreliable.
[23]
(Emphasis and underscoring supplied)

Parenthetically, Dr. Tayags Psychological Report does not even show


that the alleged anti-social personality disorder of Manolito was already
present at the inception of the marriage or that it is incurable. Neither does it
explain the incapacitating nature of the alleged disorder nor identify its root
cause. It merely states that [s]uch disorder is considered to be grave and is
deeply [immersed] within the system [and] continues to influence the
individual until the later stage of life.
There is of course no requirement that the person sought to be
declared psychologically incapacitated should be personally examined by a
physician or psychologist as a condition sine qua non to arrive at such
declaration.[24] If it can be proven by independent means that one is
psychologically incapacitated, there is no reason why the same should not be
credited.
In the present case, the only proof which bears on the claim that
Manolito is psychologically incapacitated is the following testimony of
Laila, in answer to the clarificatory questions propounded by the trial court:
Q [Court]: Now, so aside from what you said that your husband
is a drug user and that he is jobless and was not able to support your
family, what other reasons do you have for saying that your husband is
psychologically incapacitated from performing his marital obligations?
A [Laila]: He cannot give us a brighter future because he is
jobless, your honor.
Q: Apart from these two reasons which is for alleged use or
possession of drugs and his inability to get a job and support his family
you have no other basis to show for the declaration of nullity of your
marriage?
A: Yes, your honor.[25] (Underscoring supplied)

Manolitos alleged psychological incapacity is thus premised on his


being jobless and a drug user, as well as his inability to support his family
and his refusal or unwillingness to assume the essential obligations of
marriage. Manolitos state or condition or attitude has not been shown,
however, to be a malady or disorder rooted on some incapacitating or
debilitating psychological condition.

In Molina, where the therein respondent preferred to spend more time


with his friends than with his family, this Court found the same to be more
of a difficulty if not outright refusal or neglect in the performance of some
marital obligations.
In Ferraris,[26] this Court held:
We find respondents alleged mixed personality disorder, the
leaving-the- house attitude whenever they quarreled, the violent tendencies
during epileptic attacks, the sexual infidelity, the abandonment and lack of
support, and his preference to spend more time with his band mates than
his family, are not rooted on some debilitating psychological condition but
a mere refusal or unwillingness to assume the essential obligations of
marriage. (Underscoring supplied)

Also in Ferraris, this Court held that habitual alcoholism, just like
sexual infidelity or perversion and abandonment, does not by itself
constitute ground for declaring a marriage void based on psychological
incapacity.[27] Neither is emotional immaturity and irresponsibility.[28] Or
failure or refusal to meet duties and responsibilities of a married man if it is
not shown to be due to some psychological (not physical) illness.[29]
While Molina then is not set in stone,[30] the facts and circumstances
attendant to this case do not warrant a deviation from it.

WHEREFORE, the petition is GRANTED. The February 15, 2005


Decision and June 2, 2005 Resolution of the Court of Appeals in CA- G.R.
CV No. 73286 areREVERSED AND SET ASIDE. The July 17, 2001
Decision of the Regional Trial Court of Pasig City in JDRC Case No. 4862
is REINSTATED.
SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO
Associate Justice

DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

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

REYNATO S. PUNO
Chief Justice

[1]

Marriage Contract, Exhibit A, records, p. 51. In her testimony, however, Laila stated that she was only 18
years old while Manolito was 19 years old (TSN, January 14, 2000, p. 11).
[2]
Exhibit B, id. at 6.
[3]
Exhibit B-1, id. at 7.
[4]
TSN, January 14, 2000, pp. 4-10.
[5]
Id. at 6-7, 13.
[6]
Records, pp. 1-4.
[7]
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization. (As amended by E.O. 227)
[8]
Records, pp. 52-57.
[9]
Ibid.
[10]
335 Phil. 664 (1997).
[11]
310 Phil. 21 (1995).
[12]
RTC records, pp. 62-63.
[13]
Id. at 109.
[14]
CA rollo, pp. 73-86. Penned by Justice Jose L. Sabio, Jr. with the concurrence of Justices Noel G. Tijam
and Mariflor P. Punzalan Castillo.
[15]
Id. at 82-85.
[16]
Id. at 87-93.
[17]
Id. at 108-109. Penned by Justice Jose L. Sabio, Jr. with the concurrence of Justices Noel G. Tijam and
Mariflor P. Punzalan Castillo.
[18]
Rollo, pp. 7-41.
[19]
Id. at 15-16.
[20]
G.R. No. 162368, July 17, 2006.
[21]
TSN, April 13, 2000, pp. 6-7.
[22]
441 Phil. 175 (2002).
[23]
Id. at 190-191.
[24]
Marcos v. Marcos, 397 Phil. 840 (2000); Vide Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484
SCRA 353; Republic v. Iyoy, G.R. No. 152577, September 21, 2005, 470 SCRA 508.
[25]
TSN, January 14, 2000, p. 17.
[26]
Supra note 20.
[27]
Vide Hernandez v. Court of Appeals, 377 Phil. 919, 931 (1999).
[28]
Dedel v. Court of Appeals, G.R. No. 151867, January 29, 2004, 421 SCRA 461; Pesca v. Pesca, G.R.
No. 136921, April 17, 2001, 356 SCRA 588.
[29]
Vide Republic of the Philippines v. Court of Appeals, supra note 10 at 674.
[30]
In Antonio v. Reyes, supra note 24 at 370, this Court said:
The Court thus acknowledges that the definition of psychological incapacity, as intended by the revision
committee, was not cast in intractable specifics. Judicial understanding of psychological incapacity
may be informed by evolving standards, taking into account the particulars of each case, current trends
in psychological and even canonical thought, and experience. It is under the auspices of the deliberate
ambiguity of the framers that the Court has developed the Molina rules, which have been consistently
applied since 1997. Molina has proven indubitably useful in providing a unitary framework that guides
courts in adjudicating petitioners for declaration of nullity under Article 36. At the same time,
the Molinaguidelines are not set in stone, the clear legislative intent mandating a case-to-case
perception of each situation, and Molina itself arising from this evolutionary understanding of Article
36. There is no cause to disavow Molina at presentThere is need though to emphasize other
perspectives as well which should govern the disposition of petitions for declaration of nullity under
Article 36. (Italics in the original)

EN BANC
PROF. RANDOLF S. DAVID, LORENZO
TAADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI,
ROMEL REGALADO
BAGARES,
CHRISTOPHER
F.C.
BOLASTIG,
Petitioners,
- versus GLORIA
MACAPAGALARROYO,
AS
PRESIDENT
AND
COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF
OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL
ARTURO
LOMIBAO,
CHIEF,
PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------------------x
NIEZ
CACHO-OLIVARES
AND
TRIBUNE PUBLISHING CO., INC.,
Petitioners,

G.R. No. 171396


Present:
PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JJ.

Promulgated:
May 3, 2006
G.R. No. 171409

- versus HONORABLE SECRETARY EDUARDO


ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO,
JOSEPH A. SANTIAGO, TEODORO A.

G.R. No. 171485

CASINO, AGAPITO A. AQUINO, MARIO


J. AGUJA, SATUR C. OCAMPO, MUJIV
S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA
III,
EMMANUEL
JOSEL
J.
VILLANUEVA, LIZA L. MAZA, IMEE R.
MARCOS, RENATO B. MAGTUBO,
JUSTIN MARC SB. CHIPECO, ROILO
GOLEZ,
DARLENE
ANTONINOCUSTODIO,
LORETTA
ANN
P.
ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL,
IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES,
MOVEMENT
OF
CONCERNED
CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT
INCIONG,
Petitioners,
- versus EDUARDO R. ERMITA, EXECUTIVE
SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO,
SECRETARY,
DILG,
GENEROSO
SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP,
Respondents.
x-------------------------------------------------x
KILUSANG
MAYO
UNO,
REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY
GENERAL
JOEL
MAGLUNSOD,
NATIONAL FEDERATION OF LABOR
UNIONS KILUSANG MAYO UNO
(NAFLU-KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR.,
AND ROQUE M. TAN,
Petitioners,
- versus -

G.R. No. 171483

HER
EXCELLENCY,
PRESIDENT
GLORIA MACAPAGAL-ARROYO, THE
HONORABLE
EXECUTIVE
SECRETARY, EDUARDO ERMITA, THE
CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
- versus G.R. No. 171400
EXECUTIVE SECRETARY EDUARDO
R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO
M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA
III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA,
ROGELIO
V.
GARCIA
AND
INTEGRATED
BAR
OF
THE
PHILIPPINES (IBP),
Petitioners,
- versus HON.
EXECUTIVE
SECRETARY
EDUARDO
ERMITA,
GENERAL
GENEROSO SENGA, IN HIS CAPACITY
AS AFP CHIEF OF STAFF, AND
DIRECTOR
GENERAL
ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,

G.R. No. 171489

Petitioner,
- versus G.R. No. 171424
GLORIA MACAPAGAL-ARROYO, IN
HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF;
ARTURO
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL
OF
THE
PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP);
AND EDUARDO ERMITA, IN HIS
CAPACITY
AS
EXECUTIVE
SECRETARY,
Respondents.
x---------------------------------------------------------------------------------------------x

DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.[1] Superior strength the use of force cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus
most relevant. He said: In cases involving liberty, the scales of justice
should weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Laws and
actions that restrict fundamental rights come to the courts with a heavy
presumption against their constitutional validity.[2]
These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP
1017) and General Order No. 5 (G.O. No. 5), President Gloria MacapagalArroyo committed grave abuse of discretion. Petitioners contend that

respondent officials of the Government, in their professed efforts to defend


and preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20 th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of
the Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that:
The President. . . whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . ., and in my capacity
as their Commander-in-Chief, do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:


WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies of the
democratic Philippine State who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to
bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring
down the President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State
by obstructing governance including hindering the growth of the
economy and sabotaging the peoples confidence in government and
their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the


extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the
Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP


1017, thus:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists - the historical enemies of the democratic Philippine
State and who are now in a tactical alliance and engaged in a concerted
and systematic conspiracy, over a broad front, to bring down the dulyconstituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring
down our republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State
by obstructing governance, including hindering the growth of the economy
and sabotaging the peoples confidence in the government and their faith
in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the
extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to
the safety and the integrity of the Philippine State and of the Filipino
people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been
issued declaring a State of National Emergency;

NOW,
THEREFORE,
I
GLORIA
MACAPAGALARROYO, by virtue of the powers vested in me under the Constitution as
President of the Republic of the Philippines, and Commander-in-Chief of
the Republic of the Philippines, and pursuant to Proclamation No. 1017
dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the
PNP, as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of


national emergency and after all these petitions had been filed, the President
lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17,
Article XII of the Constitution, Proclamation No. 1017 dated February
24, 2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated
February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as
may be necessary;
WHEREAS, the AFP and PNP have effectively prevented,
suppressed and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGALARROYO, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5,


respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the
New Peoples Army (NPA), and some members of the political opposition
in a plot to unseat or assassinate President Arroyo.[4] They considered the
aim to oust or assassinate the President and take-over the reigns of
government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor
General specified the facts leading to the issuance of PP 1017

and
G.O. No. 5. Significantly, there was no refutation from
petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to
give full discretionary powers to the President in determining the necessity
of calling out the armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he explained that
it is not respondents task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for
the elucidation of the issues.
On

January
17,
2006,
Captain
Nathaniel
Rabonza
and
First Lieutenants Sonny Sarmiento, Lawrence San Juan and
Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude arrest
at all costs. They called upon the people to show and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by
going to the streets in protest, but also by wearing red bands on our left
arms. [5]
On February 17, 2006, the authorities got hold of a document entitled
Oplan Hackle I which detailed plans for bombings and attacks during
the Philippine Military Academy Alumni Homecoming in Baguio City. The
plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the
height of the celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2) flash
disks containing minutes of the meetings between members of the Magdalo
Group and the National Peoples Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive documents. [7] Prior
to his arrest, Lt. San Juan announced through DZRH that the Magdalos
D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were planning
to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to disavow any defection. The latter promptly
obeyed and issued a public statement: All SAF units are under the

effective control of responsible and trustworthy officers with proven integrity


and unquestionable loyalty.
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquinos brother, businessmen and mid-level
government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his
groups plans if President Arroyo is ousted. Saycon also phoned a man
code-named Delta. Saycon identified him as B/Gen. Danilo Lim,
Commander of the Armys elite Scout Ranger. Lim said it was all
systems go for the planned movement against Arroyo.[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin
confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers would join the rallies to
provide a critical mass and armed component to the Anti-Arroyo protests to
be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were
breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commanderin-Chief and to the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments in order
to forge alliances with its members and key officials. NPA spokesman
Gregorio Ka Roger Rosal declared: The Communist Party and
revolutionary movement and the entire people look forward to the possibility
in the coming year of accomplishing its immediate task of bringing down the
Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it.[9]
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly announced:
Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency operations in the
field. He claimed that with the forces of the national democratic
movement, the anti-Arroyo conservative political parties, coalitions, plus the
groups that have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication


towers and cell sites in Bulacan and Bataan was also considered as
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests.[10]
By midnight of February 23, 2006, the President convened her
security advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of
all programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the Presidents mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that warrantless arrests and take-over of facilities, including
media, can already be implemented.[11]
Undeterred by the announcements that rallies and public assemblies
would not be allowed, groups of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo
Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were already near
the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields,
water cannons, and tear gas to stop and break up the marching groups, and
scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot policemen
broke up an EDSA celebration rally held along Ayala Avenue and Paseo de
Roxas Street in Makati City.[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017


as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested
(without warrant) petitioner Randolf S. David, a professor at the University
of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives
of the Criminal Investigation and Detection Group (CIDG) of the PNP, on
the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in
Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame
in Quezon City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed
outside the building.[13]
A few minutes after the search and seizure at the Daily
Tribune offices, the police surrounded the premises of another proopposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael
Defensor, is meant to show a strong presence, to tell media outlets not
to connive or do anything that would help the rebels in bringing down this
government. The PNP warned that it would take over any media
organization that would not follow standards set by the government during
the state of national emergency. Director General Lomibao stated that if
they do not follow the standards and the standards are - if they would
contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 we will recommend a
takeover. National Telecommunications Commissioner Ronald Solis
urged television and radio networks to cooperate with the government
for the duration of the state of national emergency. He asked
for balanced reporting from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage when the national security is
threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltrans lawyer explained that the

warrant, which stemmed from a case of inciting to rebellion filed during the
Marcos regime, had long been quashed. Beltran, however, is not a party in
any of these petitions.
When members of petitioner KMU went to Camp Crame to visit
Beltran, they were told they could not be admitted because of PP 1017 and
G.O. No. 5. Two members were arrested and detained, while the rest were
dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in Quezon
City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Montao, former head of the
Philippine Constabulary, was arrested while with his wife and golfmates at
the Orchard Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casio and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket Office in
Davao City. Later, he was turned over to the custody of the House of
Representatives where the Batasan 5 decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights
of Representatives Beltran, Satur Ocampo, et al., are not being raised in
these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that
the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the
constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the constitutional requirements for
the imposition of martial law; and (3) it violates the constitutional guarantees
of freedom of the press, of speech and of assembly.

In G.R.
No.
171409,
petitioners
Ninez
Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding
the Daily Tribune offices as a clear case of censorship or prior
restraint. They also claimed that the term emergency refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
absolutely no emergency that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute usurpation of legislative powers; violation
of freedom of expression and a declaration of martial law. They
alleged that President Arroyo gravely abused her discretion in calling out
the armed forces without clear and verifiable factual basis of the possibility
of lawless violence and a showing that there is necessity to do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their
members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws and
decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to
redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of
Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of Article
XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged
that PP 1017 is an arbitrary and unlawful exercise by the President of her
Martial Law powers. And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that it amounts to an
exercise by the President of emergency powers without congressional
approval. In addition, petitioners asserted that PP 1017 goes beyond the
nature and function of a proclamation as defined under the Revised
Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda
maintained that PP 1017 and G.O. No. 5 are unconstitutional for being
violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of

public concern, all guaranteed under Article III, Section 4 of the 1987
Constitution. In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General
countered
that: first, the
petitions
should
be
dismissed
for
being
moot; second, petitioners
in
G.R.
Nos.
171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.)
and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary
for petitioners to implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does not violate the
peoples right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the
parties on the above interlocking issues which may be summarized as
follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the
petitions moot and academic.
2) Whether
petitioners
in 171485 (Escudero et
al.), G.R.
Nos.
171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal
standing.
B.
SUBSTANTIVE:
1) Whether the Supreme Court can review the factual
bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are
unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A.

PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle

One of the greatest contributions of the American system to this


country is the concept of judicial review enunciated in Marbury v. Madison.
[21]
This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people,


the ultimate source of all political authority. It confers limited powers on
the national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate
the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of
judicial review.[22]

But the power of judicial review does not repose upon the courts a
self-starting capacity.[23] Courts may exercise such power only when the
following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself.[24]
Respondents maintain that the first and second requisites are absent,
hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is definite and
concrete, touching the legal relations of parties having adverse
legal interest; a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered moot and
academic by President Arroyos issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,[26] so that a declaration thereon
would be of no practical use or value. [27] Generally, courts decline
jurisdiction over such case[28] or dismiss it on ground of mootness.[29]
The Court holds that President Arroyos issuance of PP 1021 did not
render the present petitions moot and academic. During the eight (8) days
that PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These
are the vital issues that must be resolved in the present petitions. It must be
stressed that an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative.[30]

The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of
the Constitution;[31] second, the exceptional character of the situation and the
paramount public interest is involved;[32] third,when constitutional issue
raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet
evading review.[34]
All the foregoing exceptions are present here and justify this Courts
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is
no question that the issues being raised affect the publics interest,
involving as they do the peoples basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given
by constitutional guarantees.[35] And lastly, respondents contested actions
are capable of repetition. Certainly, the petitions are subject to
judicial review.
In their attempt to prove the alleged mootness of this case,
respondents cited Chief Justice Artemio V. Panganibans Separate Opinion
in Sanlakas v. Executive Secretary.[36] However, they failed to take into
account the Chief Justices very statement that an otherwise moot case
may still be decided provided the party raising it in a proper case has been
and/or continues to be prejudiced or damaged as a direct result of its
issuance. The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the
Court deems it imperative to have a more than passing discussion on legal
standing or locus standi.
Locus standi is defined as a right of appearance in a court of justice
on a given question.[37] In private suits, standing is governed by the realparties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules
of Civil Procedure, as amended. It provides that every action must be
prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party who

stands to be benefited or injured by the judgment in the suit or the


party entitled to the avails of the suit.[38] Succinctly put, the plaintiffs
standing is based on his own right to the relief sought.
The

difficulty of determining locus standi arises in public


suits.
Here, the plaintiff who asserts a public right in assailing an
allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other
person. He could be suing as a stranger, or in the category of a
citizen, or taxpayer. In either case, he has to adequately show that he
is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of
relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and
taxpayer standing in public actions. The distinction was first laid down
in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers
suit is in a different category from the plaintiff in a citizens suit. In the
former, the plaintiff is affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins:
[40]
In matter of mere public right, howeverthe people are the real
partiesIt is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
direct injury test in Ex Parte Levitt,[42] later reaffirmed inTileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest common
to all members of the public.
This
Court
adopted
the direct
injury
test in our
jurisdiction. In People v. Vera,[44] it held that the person who impugns the

validity of a statute must have a personal and substantial interest in the


case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,[45] Manila Race Horse Trainers
Association v. De la Fuente,[46] Pascual v. Secretary of Public
Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement
of locus standi may be waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,[49] where the transcendental importance of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the
issues raised due to the far-reaching implications of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of transcendental importance. Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,[52] where the Court
ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the
petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,
wherein the Court held that given the transcendental
importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite
the lack of direct injury to the parties seeking judicial
review of the Visiting Forces Agreement;
[53]

(3) Lim v. Executive Secretary,[54] while the Court noted


that the petitioners may not file suit in their capacity as
taxpayers absent a showing that Balikatan 02-01 involves
the exercise of Congress taxing or spending powers,
it
reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,[55] that in cases of transcendental

importance, the cases must be settled promptly and


definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following requirements
are met:
(1)

the cases involve constitutional issues;

(2)

for taxpayers, there must be a claim of illegal disbursement


of public funds or that the tax measure is unconstitutional;

(3)

for voters, there must be a showing of obvious interest in the


validity of the election law in question;

(4)

for concerned citizens, there must be a showing that the


issues raised are of transcendental importance which must be
settled early; and

(5)

for legislators, there must be a claim that the official action


complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the


Courts attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status
of Kilosbayan as a peoples organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot
sue as a taxpayer absent any allegation that public funds are being misused.
Nor can it sue as a concerned citizen as it does not allege any specific injury
it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Comelec,[57] the Court reiterated the direct injury test with respect
to concerned citizens cases involving constitutional issues. It held that
there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act.
In Lacson v. Perez,[58] the Court ruled that one of the
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-

interest as it had not demonstrated any injury to itself or to its leaders,


members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they claim
that the Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers.
As to petitioners Sanlakas, Partido Manggagawa, and Social Justice
Society, the Court declared them to be devoid of standing, equating them
with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David
and Llamas, is beyond doubt. The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
direct injury resulting from illegal arrest and unlawful search
committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or
not the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice
that those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic
rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Taada v. Tuvera,[64] that when
the issue concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it
legal standing. Organizations may be granted standing to assert the
rights of their members.[65] We take judicial notice of the announcement
by the Office of the President banning all rallies and canceling all permits
for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national


officers of the Integrated Bar of the Philippines (IBP) have no legal standing,
having failed to allege any direct or potential injury which the IBP as an
institution or its members may suffer as a consequence of the issuance of PP
No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,
[66]
the Court held that the mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner
have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer
to file the instant petition as there are no allegations of illegal disbursement
of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No.
5. Her claim that she is a media personality will not likewise aid her
because there was no showing that the enforcement of these issuances
prevented her from pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will
affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the
standing rules.
It must always be borne in mind that the question of locus standi is
but corollary to the bigger question of proper exercise of judicial power. This
is the underlying legal tenet of the liberality doctrine on legal
standing. It cannot be doubted that the validity of PP No. 1017 and
G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine
society now waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the
transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his tenure of
office or actual incumbency,[67] may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It will

degrade the dignity of the high office of the President, the Head of State, if
he can be dragged into court litigations while serving as such. Furthermore,
it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to
the people[68] but he may be removed from office only in the mode provided
by law and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was
not necessary for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
Presidents exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker[70]
and Montenegro v. Castaneda[71] to the volatile era
of Lansang v.
Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla
v. Enrile.[74] The tug-of-war always cuts across the line defining political
questions, particularly those questions in regard to which full
discretionary authority has been delegated to the legislative or executive
branch of the government.[75] Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court
were unanimous in the conviction that the Court has the authority to inquire
into the existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the
focus to the system of checks and balances, under which the President
is supreme, x x x only if and when he acts within the sphere allotted to
him by the Basic Law, and
the authority to determine whether or
not he has so acted is vested
in the Judicial Department,which in
this
respect,
is,
in
turn,
[76]
constitutionally supreme. In
1973,
the
unanimous
Court
[77]
of Lansang was divided in Aquino v. Enrile. There, the Court

was
almost evenly divided on the issue of whether the validity
of the
imposition of Martial Law is a political or justiciable
question.[78] Then
came Garcia-Padilla
v.
Enrile which
greatly
diluted Lansang. It declared that there is a need to re-examine the latter
case, ratiocinating that in times of war or national emergency, the
President must be given absolute control for the very life of the nation
and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.[79]
The Integrated Bar of the Philippines v. Zamora [80] -- a recent case
most pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the Presidents calling-out
power as a discretionary power solely vested in his wisdom, it stressed that
this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. This
ruling is mainly a result of the Courts reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to determine in
an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are
authorized not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government. The latter part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms
of power but also of duty.[82]
As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that judicial inquiry can go no
further than to satisfy the Court not that the Presidents decision
is correct, but that the President did not act arbitrarily. Thus, the
standard laid down is not correctness, but arbitrariness. [83] In Integrated Bar
of the Philippines, this Court further ruled that it is incumbent upon the
petitioner to show that the Presidents decision is totally bereft of
factual basis and that if he fails, by way of proof, to support his assertion,
then this Court cannot undertake an independent investigation beyond
the pleadings.

Petitioners failed to show that President Arroyos exercise of the


calling-out power, by issuing PP 1017, is totally bereft of factual basis. A
reading of the Solicitor Generals Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the
issuance of PP 1017, with supporting reports forming part of the
records. Mentioned are the escape of the Magdalo Group, their audacious
threat of the Magdalo D-Day, the defections in the military, particularly in
the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security
Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was
not expected to simply fold her arms and do nothing to prevent or suppress
what she believed was lawless violence, invasion or rebellion. However,
the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the


President in times of emergency. A glimpse at the various political theories
relating to this subject provides an adequate backdrop for our ensuing
discussion.
John Locke, describing the architecture of civil government, called
upon the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the
legislature might be inadequate or even a fatal obstacle to the promptness of
action necessary to avert catastrophe. In these situations, the Crown retained
a prerogative power to act according to discretion for the public good,
without the proscription of the law and sometimes even against
it.[84] But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for
resorting to the prerogative and how may its abuse be avoided? Here,

Locke readily admitted defeat, suggesting that the people have no other
remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven.[85]
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them disastrous
and make them bring about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong
as to render it impossible to suspend their operation. Even Sparta allowed
its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are
an obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general
will, and it clear that the peoples first intention is that the State shall not
perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or


supreme magistracy as he termed it. For him, it would more likely be
cheapened by indiscreet use. He was unwilling to rely upon an appeal
to heaven. Instead, he relied upon a tenure of office of prescribed duration
to avoid perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative
government: I am far from condemning, in cases of extreme necessity,
the assumption of absolute power in the form of a temporary
dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in


the whole scheme of limited government, furnished an ironic contrast to the
Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to
resort to extra constitutional measures; for although they may for a time
be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded

under that pretext but for evil purposes. Thus, no republic will ever be
perfect if she has not by law provided for everything, having a remedy for
every emergency and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to


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

Contemporary political theorists, addressing themselves to the


problem of response to emergency by constitutional democracies, have
employed the doctrine of constitutional dictatorship.[91] Frederick M.
Watkins saw no reason why absolutism should not be used as a means
for the defense of liberal institutions, provided it serves to protect
established institutions from the danger of permanent injury in a period
of temporary emergency and is followed by a prompt return to the
previous forms of political life.[92] He recognized the two (2) key
elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the
executive, while at the same time imposing limitation upon that
power.[93] Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: The period of dictatorship must be relatively
shortDictatorship should always be strictly legitimate in
characterFinal authority to determine the need for dictatorship in any
given case must never rest with the dictator himself[94] and the
objective of such an emergency dictatorship should be strict political
conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.


It is a problem of concentrating power in a government where
power has consciously been divided to cope with situations of
unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end. [96] Friedrich, too, offered
criteria for judging the adequacy of any of scheme of emergency powers, to
wit: The emergency executive must be appointed by constitutional
means i.e., he must be legitimate; he should not enjoy power to
determine the existence of an emergency; emergency powers should be
[95]

exercised under a strict time limitation; and last, the objective of


emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of


emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of constitutional
dictatorship as solution to the vexing problems presented by emergency.
[98]
Like Watkins and Friedrich, he stated a priori the conditions of success
of the constitutional dictatorship, thus:
1) No general regime or particular institution of
constitutional dictatorship should be initiated unless it is necessary
or even indispensable to the preservation of the State and its
constitutional order
2) the decision to institute a constitutional dictatorship
should never be in the hands of the man or men who will constitute
the dictator
3) No government should initiate a constitutional
dictatorship without making specific provisions for its
termination
4) all uses of emergency powers and all readjustments in
the organization of the government should be effected in pursuit of
constitutional or legal requirements
5) no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in character
or effect
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every
action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship,
like the decision to institute one should never be in the hands of the
man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted
11) the termination of the crisis must be followed by a
complete return as possible to the political and governmental

conditions existing prior to the initiation of the constitutional


dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of


emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency,
and he places great faith in the effectiveness of congressional investigating
committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light
of recent experience, were one in saying that, the suggestion that
democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound
constitutional theory. To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term dictator is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace
all chief executives administering emergency powers. However used,
constitutional dictatorship cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored
instead the concept of constitutionalism articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is consistent with
the findings of this study, is that formulated by Charles H. McIlwain.
While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is
placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he
insisted that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the enfeebling
of government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a
great and very significant difference. In associating constitutionalism
with limited as distinguished from weak government,
McIlwain meant government limited to the orderly procedure of law
as opposed to the processes of force. The two fundamental correlative
elements of constitutionalism for which all lovers of liberty must yet
fight are the legal limits to arbitrary power and a complete political
responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the


above political theorists - from Locks theory of prerogative, to

Watkins doctrine of constitutional dictatorship and, eventually, to


McIlwains principle of constitutionalism --- ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive, while insuring that
such powers will be exercised with a sense of political responsibility and
under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the
fetters of a repressive regime, the 1986 Constitutional Commission, in
drafting the 1987 Constitution, endeavored to create a government in the
concept of Justice Jacksons balanced power structure.[102] Executive,
legislative, and judicial powers are dispersed to the President, the Congress,
and the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as limitation or check
upon
the
other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In
other words, in times of emergency, our Constitution reasonably demands
that we repose a certain amount of faith in the basic integrity and wisdom of
the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. Facial Challenge
Petitioners contend that PP 1017 is void on its face because of its
overbreadth. They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a chilling effect to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled
for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing on their faces statutes in free speech cases, also
known under the American Law as First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the AFP to
prevent or suppress all forms of lawless violence. In United States v.
Salerno,[104] the US Supreme Court held that we have not recognized an

overbreadth doctrine outside the limited context of the First


Amendment (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected conduct.
Undoubtedly, lawless violence, insurrection and rebellion are considered
harmful and constitutionally unprotected conduct. In Broadrick v.
Oklahoma,[105] it was held:
It remains a matter of no little difficulty to determine when a
law may properly be held void on its face and when such summary
action is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from pure speech toward
conduct and that conduct even if expressive falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving


statutes which, by their terms, seek to regulate only spoken words and
again, that overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be
applied to protected conduct.[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly


strong medicine, to be used sparingly and only as a last resort,
and is generally disfavored;[107] The reason for this is obvious.
Embedded in the traditional rules governing constitutional adjudication is
the principle that a person to whom a law may be applied will not be heard
to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court.
[108]
A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is
that it marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by

invalidating its improper applications on a case to case


basis. Moreover, challengers to a law are not permitted to raise the
rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire
statute on its face, not merely as applied for so that the overbroad
law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the chilling; deterrent effect of
the overbroad statute on third parties not courageous enough to bring
suit. The Court assumes that an overbroad laws very existence may
cause others not before the court to refrain from constitutionally protected
speech or expression. An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will


require the Court to examine PP 1017 and pinpoint its flaws and defects, not
on the basis of its actual operation to petitioners, but on the assumption or
prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy,
the impact on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever
way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most


difficult challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the overbreadth doctrine is the void for vagueness
doctrine which holds that a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application.[110] It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing on their
faces statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show

that PP 1017 is vague in all its application. They also failed to establish
that men of common intelligence cannot understand the meaning and
application of PP 1017.

b. Constitutional Basis of PP 1017


Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
by virtue of the power vested upon me by Section 18,
Artilce VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion
Second provision:
and to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally
or upon my direction;

Third provision:

as provided in Section 17, Article XII of the


Constitution do hereby declare a State of National
Emergency.
First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In


Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O.
Tinga, held that Section 18, Article VII of the Constitution reproduced as
follows:
Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance with
its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated


powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,[112] the Court ruled that the only criterion for the exercise of the
calling-out power is that whenever it becomes necessary, the President

may call the armed forces to prevent or suppress lawless violence,


invasion or rebellion. Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her
Offices vast intelligence network, she is in the best position to determine
the actual condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes
beyond the Presidents calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a
lesser power. There lies the wisdom of our Constitution, the greater the
power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the
Presidents authority to declare a state of rebellion (in Sanlakas) and the
authority to proclaim a state of national emergency. While President
Arroyos authority to declare a state of rebellion emanates from her
powers as Chief Executive, the statutory authority cited inSanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. Proclamations. Acts of the President fixing a
date or declaring a status or condition of public moment or interest,
upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order.

President Arroyos declaration of a state of rebellion was merely


an act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration, in the
words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the States extraordinary power to take over
privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome
power. Obviously, such Proclamation cannot be deemed harmless, without
legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a


declaration of Martial Law. It is no so. What defines the character of PP
1017 are its wordings. It is plain therein that what the President invoked
was her calling-out power.
The declaration of Martial Law is a warn[ing] to citizens that the
military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will in
any way render more difficult the restoration of order and the enforcement
of law.[113]
In his Statement before the Senate Committee on Justice on March
13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional
law, said that of the three powers of the President as Commander-in-Chief,
the power to declare Martial Law poses the most severe threat to civil
liberties. It is a strong medicine which should not be resorted to lightly. It
cannot be used to stifle or persecute critics of the government. It is placed in
the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial


Law. It is no more than a call by the President to the armed forces to
prevent or suppress lawless violence. As such, it cannot be used to justify
acts that only under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope, and any act
done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of
news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law
or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a


declaration of Martial Law. It is merely an exercise of President
Arroyos calling-out power for the armed forces to assist her in preventing
or suppressing lawless violence.
Second Provision: Take Care Power
The second provision pertains to the power of the President to ensure
that the laws be faithfully executed. This is based on Section 17, Article VII
which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested,[115] the


primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that all
laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others, execute its
laws.[116] In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all
the armed forces of the country,[117] including the Philippine National
Police[118] under the Department of Interior and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon President
Arroyo the power to enact laws and decrees in violation of Section 1, Article
VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally
or upon my direction.
\

Petitioners contention is understandable. A reading of PP 1017


operative clause shows that it was lifted[120] from Former President Marcos
Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President


of the Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos


legislative power. Its enabling clause states: to enforce obedience to all
the laws and decrees, orders and regulations promulgated by me
personally or upon my direction. Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.
Is it within the domain of President Arroyo to promulgate
decrees?
PP 1017 states
part: to enforce obedience to all the laws and decrees x
x promulgated by me personally or upon my direction.

in
x

The President is granted an Ordinance Power under Chapter 2, Book


III of Executive Order No. 292 (Administrative Code of 1987). She may
issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for
rules of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated in executive
orders.
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative
orders.
Sec. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force
of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters
of administrative detail or of subordinate or temporary interest which only

concern a particular officer or office of the Government shall be embodied


in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on
matters relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, bureaus
or offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing


issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which are of
the same category and binding force as statutes because they were issued by
the President in the exercise of his legislative power during the period of
Martial Law under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional
insofar as it grants President Arroyo the authority to promulgate
decrees. Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that [t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives. To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyos exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws
through the military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to laws, she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:


x x x and to enforce obedience to all the laws and to
all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.

The import of this provision is that President Arroyo, during the state
of national emergency under PP 1017, can call the military not only to
enforce obedience to all the laws and to all decrees x x x but also to act
pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above


provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a
product of the martial law thinking of the 1971 Constitutional
Convention.[122] In effect at the time of its approval was President Marcos
Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over the management, control and
operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present national
emergency.
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyos inclusion of Section 17, Article XII in PP
1017 is an encroachment on the legislatures emergency powers.
This is an area that needs delineation.

A distinction must be drawn between the Presidents authority


to declare a state of national emergency and
to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII
grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

It may be pointed out that the second paragraph of the above provision
refers not only to war but also to other national emergency. If the
intention of the Framers of our Constitution was to withhold from the
President the authority to declare a state of national emergency pursuant
to Section 18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the Framers could
have provided so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a state of national
emergency. The logical conclusion then is that President Arroyo could
validly declare the existence of a state of national emergency even in the
absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari
materia are to be construed together. Otherwise stated, different clauses,
sections, and provisions of a constitution which relate to the same subject
matter will be construed together and considered in the light of each other.
[123]
Considering that Section 17 of Article XII and Section 23 of Article VI,
previously quoted, relate to national emergencies, they must be read together
to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This


is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave emergencies, it
may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the


emergency powers clause. The taking over of private business affected with
public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the the State
may, during the emergency and under reasonable terms prescribed by
it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest, it refers to
Congress, not the President. Now, whether or not the President may exercise
such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he
did, it must be found in some provision of the Constitution. And it is not
claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied
from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that The
executive Power shall be vested in a President . . . .; that he shall take
Care that the Laws be faithfully executed; and that he shall be
Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the
Presidents military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases
upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even
though theater of war be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-

Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from
stopping production. This is a job for the nations lawmakers, not
for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the Presidents
power to see that the laws are faithfully executed refutes the idea that
he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that All
legislative Powers herein granted shall be vested in a Congress of the
United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency


under
Section
17,
Article
XII
refers
to
tsunami,
typhoon, hurricane and similar occurrences. This is a limited
view of emergency.

Emergency, as a generic term, connotes the existence of conditions


suddenly intensifying the degree of existing danger to life or well-being
beyond that which is accepted as normal. Implicit in this definitions are the
elements of intensity, variety, and perception. [127] Emergencies, as perceived
by legislature or executive in the United Sates since 1933, have been
occasioned by a wide range of situations, classifiable under three (3)
principal heads: a) economic,[128] b) natural disaster,[129] and c) national
security.[130]
Emergency, as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.[131] This is evident in the Records of the Constitutional Commission,
thus:
MR. GASCON. Yes. What is the Committees definition of
national emergency which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or
business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression,


for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los
Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
national emergency.
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.[132]
x

MR. TINGSON. May I ask the committee if national emergency


refers to military national emergency or could this be economic
emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may


not be able to convene and, therefore, unable to delegate to the President the
power to take over privately-owned public utility or business affected with
public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative
power, through which extraordinary measures are exercised, remains in
Congress even in times of crisis.
x x x
After all the criticisms that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice
that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have
specific functions of the legislative branch of enacting laws been
surrendered to another department unless we regard as
legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting
a total war, or when it was engaged in a life-and-death struggle to
preserve the Union. The truth is that under our concept of

constitutional government, in times of extreme perils more than in


normal circumstances the various branches, executive,
legislative, and judicial, given the ability to act, are called upon
to perform the duties and discharge the responsibilities
committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by


President Arroyo in issuing PP 1017, this Court rules that such Proclamation
does not authorize her during the emergency to temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare
a state of national emergency, however, without legislation, he has
no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether
exceptional
circumstances exist warranting the take over of privatelyowned
public utility or business affected with public interest. Nor can
he
determine
when
such
exceptional
circumstances
have
ceased. Likewise, without legislation, the President has no power to point
out the types of businesses affected with public interest that should be taken
over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.

c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed rights of the
individual are often not compatible. Our history reveals that in the crucible
of conflict, many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate direct injury.
In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their way to
EDSA to celebrate the 20thAnniversary of People Power I. The arresting
officers cited PP 1017 as basis of the arrest.

In G.R.
No.
171409,
petitioners
Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the
CIDG operatives raided and ransacked without warrant their
office. Three policemen were assigned to guard their office as a possible
source of destabilization. Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
al. alleged that their members were turned away and dispersed when they
went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary
of People Power I.
A perusal of the direct injuries allegedly suffered by the said
petitioners shows that they resulted from the implementation, pursuant to
G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5
on the basis of these illegal acts? In general, does the illegal implementation
of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused [135] and may afford
an opportunity for abuse in the manner of application.[136] The validity
of a statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a
particular case.[137] PP 1017 is merely an invocation of the Presidents
calling-out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had accomplished the
end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct
illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on


the ground that its implementor committed illegal acts? The answer is no.
The criterion by which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.[138] This is logical. Just imagine
the absurdity of situations when laws maybe declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were
so, judging from the blunders committed by policemen in the cases passed

upon by the Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions
of PP 1017. General orders are acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines.
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them.[139] They are based on and are the
product of, a relationship in which power is their source, and obedience,
their object.[140] For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out
the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
Unlike the term lawless violence which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
invasion, insurrection or rebellion, the phrase acts of terrorism is still
an amorphous and vague concept. Congress has yet to enact a law defining
and punishing acts of terrorism.

In fact, this definitional predicament or the absence of an agreed


definition of terrorism confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the fight
against terrorism has become one of the basic slogans when it comes to
the justification of the use of force against certain states and against
groups operating internationally. Lists of states sponsoring terrorism
and of terrorist organizations are set up and constantly being updated
according to criteria that are not always known to the public, but are
clearly determined by strategic interests.
The basic problem underlying all these military actions or
threats of the use of force as the most recent by the United States against
Iraq consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization
of acts of violence either by states, by armed groups such as liberation
movements, or by individuals.

The dilemma can by summarized in the saying One countrys


terrorist is another countrys freedom fighter. The apparent
contradiction or lack of consistency in the use of the term terrorism
may further be demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a
few, were originally labeled as terrorists by those who controlled the
territory at the time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts
the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization
has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate terrorism
with any violent act by non-state groups against civilians, state
functionaries or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when resistance
against foreign occupation or against systematic oppression of ethnic
and/or religious groups within a state is concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of organizations
and movements such as Palestine Liberation Organization (PLO) which
is a terrorist group for Israel and a liberation movement for Arabs and
Muslims the Kashmiri resistance groups who are terrorists in the
perception of India, liberation fighters in that of Pakistan the earlier
Contras in Nicaragua freedom fighters for the United States, terrorists
for the Socialist camp or, most drastically, the Afghani Mujahedeen
(later to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the United
States, and a terrorist gang for the Soviet Union. One could go on and on
in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at
the roots of those perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will fluctuate accordingly. A state may
eventually see itself as protector of the rights of a certain ethnic group
outside its territory and will therefore speak of a liberation struggle,
not of terrorism when acts of violence by this group are concerned, and
vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these conflicting
interests of sovereign states that determine in each and every instance how
a particular armed movement (i.e. a non-state actor) is labeled in regard to
the terrorists-freedom fighter dichotomy. A policy of double standards

on this vital issue of international affairs has been the unavoidable


consequence.
This definitional predicament of an organization consisting of
sovereign states and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! has become even more serious
in the present global power constellation: one superpower exercises the
decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the
problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.[141]

The absence of a law defining acts of terrorism may result in abuse


and oppression on the part of the police or military. An illustration is when
a group of persons are merely engaged in a drinking spree. Yet the military
or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression
on their part. It must be remembered that an act can only be considered a
crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos
during the Martial Law regime. This decree is entitled Codifying The
Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations. The word terrorism is
mentioned in the following provision: That one who conspires with any
other person for the purpose of overthrowing the Government of the
Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon Aquino
on May 5, 1985. These two (2) laws, however, do not define acts of
terrorism. Since there is no law defining acts of terrorism, it is
President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over the
media enterprises, prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the

President. Certainly, they violate the due process clause of the


Constitution. Thus, this Court declares that the acts of terrorism portion
of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military


or police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured


in their persons, houses, papers and effects against unreasonable search and
seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.[142] The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and
police must stand the protective authority of a magistrate clothed with power
to issue or refuse to issue search warrants or warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts


are established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed
and booked like a criminal suspect; fourth, he was treated brusquely by
policemen who held his head and tried to push him inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa
Bilang
No. 880[145]and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for insufficiency
of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure


provides:
Sec. 5. Arrest without warrant; when lawful. - A peace
officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
x

x.

Neither of the two (2) exceptions mentioned above justifies petitioner


Davids warrantless arrest. During the inquest for the charges of inciting
to
sedition andviolation
of
BP
880, all that the arresting officers could invoke
was their
observation that some rallyists were wearing t-shirts
with
the
invective Oust Gloria Nowand their erroneous assumption that
petitioner David was the leader of the rally.[146] Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the subject t-shirt
and even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not
only was their right against warrantless arrest violated, but also their right to
peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of


expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.

Assembly means a right on the part of the citizens to meet


peaceably for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other
words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be
held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to seditionand violation of BP
880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers conduct. In De Jonge v.
Oregon,[148] it was held that peaceable assembly cannot be made a crime,
thus:
Peaceable assembly for lawful discussion cannot be made a crime.
The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be
branded as criminals on that score. The question, if the rights of free
speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to
the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have formed
or are engaged in a conspiracy against the public peace and order, they
may be prosecuted for their conspiracy or other violations of valid
laws. But it is a different matter when the State, instead of prosecuting
them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal
charge.

On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacaangs directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all
permits to rally is a blatant disregard of the principle that freedom of
assembly is not to be limited, much less denied, except on a showing of
a clear and present danger of a substantive evil that the State has a right
to prevent.[149] Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present danger that the
State may deny the citizens right to exercise it. Indeed, respondents failed
to show or convince the Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and


rallies is lodged with the local government units. They have the power to
issue permits and to revoke such permits after due notice and hearing on
the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a persons right is
restricted by government action, it behooves a democratic government to see
to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of


freedom of speech i.e., the freedom of the press. Petitioners narration of
facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribunes offices were searched without
warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o clock in the
morning of February 25, 2006; fourth, the search was conducted in the
absence of any official of theDaily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying that such

raid was meant to show a strong presence, to tell media outlets not
to connive or do anything that would help the rebels in bringing down
this government. Director General Lomibao further stated that if they
do not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 we will
recommend a takeover. National Telecommunications Commissioner
Ronald Solis urged television and radio networks to cooperate with the
government for the duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and seizure. Section
4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce. Section 8 mandates that the search of a house,
room, or any other premise be made in the presence of the lawful
occupantthereof or any member of his family or in the absence of the latter,
in the presence of two (2) witnesses of sufficient age and discretion residing
in the same locality. And Section 9 states that the warrant must direct that it
be served in the daytime, unless the property is on the person or in the place
ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were violated by the
CIDG operatives.
Not only that, the search violated petitioners freedom of the
press. The best gauge of a free and democratic society rests in the degree of
freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court
held that -As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even

militant press is essential for the political enlightenment and growth


of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed
like the Metropolitan Mail and We Forum newspapers in the above
case, yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and
the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who
tells the citizen that he may speak only if allowed to do so, and no more and
no less than what he is permitted to say on pain of punishment should he be
so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected
to these arbitrary intrusions because of its anti-government sentiments. This
Court cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public
affairs is essential to the vitality of a representative democracy. It is the duty
of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always
be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted


that the search of the Tribunes offices and the seizure of its materials for
publication and other papers are illegal; and that the same are inadmissible
for any purpose, thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you
said that the policemen, when inspected the Tribune
for the purpose of gathering evidence and you
admitted that the policemen were able to get the
clippings. Is that not in admission of the
admissibility of these clippings that were taken
from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were
illegally seized, I think and I know, Your Honor, and
these are inadmissible for any purpose.[155]
xxx

xxx

SR. ASSO. JUSTICE PUNO:

xxx

These have been published in the past issues of the


Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1
oclock in the morning and without any search
warrant? Did they become suddenly part of the
evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your
Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is
illegal, it is not based on any law, and it is not based
on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor,
because there is nothing in 1017 which says that the
police could go and inspect and gather clippings
from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the
facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I
said, I dont know if it is premature to say this, we
do not condone this. If the people who have been
injured by this would want to sue them, they can
sue and there are remedies for this.[156]

Likewise, the warrantless arrests and seizures executed by the police


were, according to the Solicitor General, illegal and cannot be condoned,
thus:

CHIEF JUSTICE PANGANIBAN:


There seems to be some confusions if not
contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts,
the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You
cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police
officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and should result in no constitutional or
statutory breaches if applied according to their letter.
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens rights
under the Constitution, this Court has to declare such acts unconstitutional
and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring
opinion, attached hereto, is considered an integral part of this ponencia.

S U M M AT I O N
In sum, the lifting of PP 1017 through the issuance of PP 1021 a
supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee
that PP 1017, or one similar to it, may not again be issued. Already, there
have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed if the May 1 rallies become unruly and
violent. Consequently, the transcendental issues raised by the parties
should not be evaded; they must now be resolved to prevent future
constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as


it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section 18,
Article VII of the Constitution and the relevant jurisprudence discussed
earlier. However, PP 1017s extraneous provisions giving the President
express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a legislation,
cannot take over privately-owned public utility and private business affected
with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order
issued by the President acting as Commander-in-Chief addressed to
subalterns in the AFP to carry out the provisions of PP 1017. Significantly,
it also provides a valid standard that the military and the police should
take only the necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence. But the words acts of
terrorism found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said
G.O. While terrorism has been denounced generally in media, no law
has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFPs authority in carrying out this portion of
G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is
also pristine clear that (1) the warrantless arrest of petitioners Randolf S.
David and Ronald Llamas; (2) the dispersal of the rallies and warrantless
arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid provisions
of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any
civil, criminal or administrative sanctions on the individual police officers

concerned. They have not been individually identified and given their day
in court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.

It is well to remember that military power is a means to an end


and substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may
vary in breadth and intensity from normal times, yet they should not be
arbitrary as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is possible to
grant government the authority to cope with crises without surrendering the
two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that
PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to
enforce laws not related to lawless violence, as well as decrees promulgated
by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section
17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned
public utility or business affected with public interest without prior
legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by


which the AFP and the PNP should implement PP 1017, i.e. whatever is
necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence. Considering that acts of terrorism

have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune offices
and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.
No costs.

SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
REYNATO S. PUNO
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

ROMEO J. CALLEJO, SR.


Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

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

ARTEMIO V. PANGANIBAN
Chief Justice

*
[1]

[2]
[3]

[4]
[5]

On leave.
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Lecturer, Volume XIX,
1971, p. 29.
Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who
propounded universal impermanence and that all things, notably opposites are interrelated.
Respondents Comment dated March 6, 2006.
Ibid.

[6]

Ibid.

[7]

Minutes of the Intelligence Report and Security Group, Philippine Army, Annex I of Respondents
Consolidated Comment.

[8]

Respondents Consolidated Comment.

[9]

Ibid.

[10]

Ibid.

[11]

Petition in G.R. No. 171396, p. 5.

[12]

Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed
were broadcast as breaking news by the major television stations of this country.

[13]

Petition in G.R. No. 171400, p. 11.

[14]

Ibid.

[15]

The prime duty of the Government is to serve and protect the people. The Government may call upon
the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.

[16]

No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.

[17]

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

[18]

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the Government for redress of grievances.

[19]

(1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for
a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.

[20]

In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.

[21]

1 Cranch 137 [1803].

[22]

Howard L. MacBain, Some Aspects of Judicial Review, Bacon Lectures on the Constitution of the
United States (Boston: Boston University Heffernan Press, 1939), pp. 376-77.

[23]

The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to
have a justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p.
79).

[24]

Cruz, Philippine Political Law, 2002 Ed., p. 259.

[25]

Ibid.

[26]

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

[27]

Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425
SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91;
and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590.

[28]

Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421
SCRA 21; Vda. De Dabao v. Court of Appeals, supra.

[29]

Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.

[30]

Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.

[31]

Province of Batangas v. Romulo, supra.

[32]

Lacson v. Perez, supra.

[33]

Province of Batangas v. Romulo, supra.

[34]

Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v.
Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive
Secretary,
G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[35]

Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.

[36]

G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[37]

Blacks Law Dictionary, 6th Ed. 1991, p. 941.

[38]

Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

[39]

275 Ky 91, 120 SW2d 765 (1938).

[40]

19 Wend. 56 (1837).

[41]

232 NC 48, 59 SE2d 359 (1950).

[42]

302 U.S. 633.

[43]

318 U.S. 446.

[44]

65 Phil. 56 (1937).

[45]

G.R. No. 117, November 7, 1945 (Unreported).

[46]

G.R. No. 2947, January 11, 1959 (Unreported).

[47]

110 Phil. 331 (1960).

[48]

77 Phil. 1012 (1947).

[49]

84 Phil. 368 (1949) The Court held: Above all, the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.

[50]
[51]

[52]
[53]
[54]
[55]

L-No. 40004, January 31, 1975, 62 SCRA 275.


Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where
the question is one of public duty and the enforcement of a public right, the people are the real party in
interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the
Court held that in cases involving an assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses
the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30,
1988, 163 SCRA 371, where the Court held that objections to taxpayers lack of personality to sue
may be disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while
no expenditure of public funds was involved under the questioned contract, nonetheless considering its
important role in the economic development of the country and the magnitude of the financial
consideration involved, public interest was definitely involved and this clothed petitioner with the legal
personality under the disclosure provision of the Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No.
78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly
speaking, not covered by the definition of a proper party, nonetheless, it has the discretion to waive
the requirement, in determining the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court
held that it enjoys the open discretion to entertain taxpayers suit or not and that a member of the
Senate has the requisite personality to bring a suit where a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held
that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved,
pertains to illegal expenditure of public money;
Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA
750, where the Court held that where serious constitutional questions are involved, the
transcendental importance to the public of the cases involved demands that they be settled
promptly and definitely, brushing aside technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the
importance of the issues involved concerning as it does the political exercise of qualified voters
affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus
standi.
G.R. No. 133250, July 9, 2002, 384 SCRA 152.
G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
Supra.

[56]

G.R. No. 118910, November 16, 1995, 250 SCRA 130.

[57]

G.R. No. 132922, April 21, 1998, 289 SCRA 337.

[58]

G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.

[59]

G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[60]

235 SCRA 506 (1994).

[61]

Supra.

[62]

Supra.

[63]

197 SCRA 52, 60 (1991).

[64]

Supra.

[65]

See NAACP v. Alabama, 357 U.S. 449 (1958).

[66]

G.R. No. 141284, August 15, 2000, 338 SCRA 81.

[67]

From the deliberations of the Constitutional Commission, the intent of the framers is clear that the
immunity of the President from suit is concurrent only with his tenure and not his term. (De
Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).

[68]

Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers
and employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.

[69]

Ibid., Sec. 2.

[70]

No. 2908, September 30, 2005, 471 SCRA 87.

[71]

91 Phil. 882 (1952).

[72]

No. L-33964, December 11, 1971, 42 SCRA 448.

[73]

No. L-35546, September 17, 1974, 59 SCRA 183.

[74]

No. L-61388, April 20, 1983, 121 SCRA 472.

[75]

Taada v. Cuenco, 103 Phil. 1051 (1957).

[76]

Lansang v. Garcia, supra, pp. 473 and 481.

[77]

Supra.

[78]

Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took the position that the
proclamation of martial law and the arrest and detention orders accompanying the proclamation posed a
political question beyond the jurisdiction of the Court. Justice Antonio, in a separate opinion concurred
in by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a strong
presidency and had concentrated powers in times of emergency in the hands of the President and had given
him broad authority and discretion which the Court was bound to respect. He made reference to the
decision in Lansang v. Garcia but read it as in effect upholding the political question
position. Fernandez, in a separate opinion, also arguedLansang, even understood as giving a narrow scope
of review authority to the Court, affirmed the impossible task of checking the action taken by the
President. Hence, he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the
abandonment of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, MuozPalma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated
in Lansang, x x x Barredo, however, wanted to have the best of both worlds and opted for the view that
political questions are not per se beyond the Courts jurisdiction ... but that as a matter of policy implicit
in the Constitution itself the Court should abstain from interfering with the Executives Proclamation.
(Bernas,The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 794.)

[79]

See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.

[80]

Supra.

[81]

Cruz, Philippine Political Law, 2002 Ed., p. 247.

[82]

Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

[83]

Supra, 481-482.

[84]

Smith and Cotter, Powers of the President during Crises, 1972, p. 6.

[85]

Ibid.

[86]

The Social Contract (New York: Dutton, 1950), pp. 123-124.

[87]

Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.

[88]

Representative Government, New York, Dutton, 1950, pp. 274, 277-78.

[89]

The Discourses, Bk. 1, Ch. XXXIV.

[90]

Smith and Cotter, Powers of the President During Crises, 1972. p. 8.

[91]

Ibid.

[92]

See The Problem of Constitutional Dictatorship, p. 328.

[93]

Ibid., p. 353.

[94]

Ibid., pp. 338-341.

[95]

Smith and Cotter, Powers of the President During Crises, 1972, p. 9.

[96]

Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580.

[97]

Ibid, pp. 574-584.

[98]

Smith and Cotter, Powers of the President During Crises, 1972, p. 10.

[99]

Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306.

[100]

Smith and Cotter, Powers of the President During Crises, 1972, p. 11.

[101]

Smith and Cotter, Powers of the President During Crises, 1972, p. 12.

[102]

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See
Concurring Opinion J. Jackson.

[103]

See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001, 369 SCRA 393.

[104]

481 U.S. 739, 95 L. Ed. 2d 697 (1987).

[105]

Supra.

[106]

See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.

[107]

Broadrick v. Oklahoma, 413 U.S. 601 (1973).

[108]
[109]

[110]

[111]

Ibid.
401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524
(1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967,
20 SCRA 849 (1967).
G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President
Arroyos declaration of a state of rebellion pursuant to her calling-out power.

[112]

Supra.

[113]

Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v.
Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].

[114]

Retired Associate Justice of the Supreme Court.

[115]

Section 1, Article VII of the Constitution.

[116]

Section 5, Article VII of the Constitution.

[117]

Section 18, Article VII of the Constitution.

[118]

Section 6, Article XVI of the Constitution.

[119]

See Republic Act No. 6975.

[120]

[121]

[122]

Ironically, even the 7th Whereas Clause of PP 1017 which states that Article 2, Section 4 of our
Constitution makes the defense and preservation of the democratic institutions and the State the
primary duty of Government replicates more closely Section 2, Article 2 of the 1973 Constitution
than Section 4, Article 2 of the 1987 Constitution which provides that, [t[he prime duty of the
Government is to serve and protect the people.
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115
SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.
Section 17, Article XIV of the 1973 Constitution reads: In times of national emergency when the
public interest so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.

[123]

Antieau, Constitutional Construction, 1982, p.21.

[124]

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

[125]

343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).

[126]
[127]

Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.
Smith and Cotter, Powers of the President During Crises, 1972, p. 14

[128]

The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a
serious emergency, due to wide-spread unemployment and the inadequacy of State and local relief funds, . . .
making it imperative that the Federal Government cooperate more effectively with the several States and
Territories and the District of Columbia in furnishing relief to their needy and distressed people. President
Roosevelt in declaring a bank holiday a few days after taking office in 1933 proclaimed that heavy and
unwarranted withdrawals of gold and currency from banking institutions for the purpose of hoarding; ...
resulting in sever drains on the Nations stocks of gold have created a national emergency, requiring his
action. Enacted within months after Japans attack on Pearl Harbor, the Emergency Price Control Act of
1942 was designed to prevent economic dislocations from endangering the national defense and security and the
effective prosecution of the war. (Smith and Cotter, Powers of the President During Crises, 1972, p.18)

[129]

The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for
relief in stricken agricultural areas and in another section referred to the present drought emergency.[129] The
India Emergency Food Aid Act of 1951provided for emergency shipments of food to India to meet famine
conditions then ravaging the great Asian sub-continent. The Communication Act of 1934 and its 1951 amendment
grant the President certain powers in time of public peril or disaster. The other statutes provide for existing or
anticipated emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides.
[129]
There is also a Joint Resolution of April 1937. It made funds available for the control of incipient or
emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon crickets, and chinch bugs.
(66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra.

[130]

National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act of 1950 contemplated an attack or series of
attacks by an enemy of the United States which conceivably would cause substantial damage or injury to civilian
property or persons in the United States by any one of several means; sabotage, the use of bombs, shellfire, or
atomic, radiological, chemical, bacteriological means or other weapons or processes. Such an occurrence would
cause a National Emergency for Civil Defense Purposes, or a state of civil defense emergency, during the
term which the Civil Defense Administrator would have recourse to extraordinary powers outlined in the Act.
The New York-New Jersey Civil Defense Compactsupplies an illustration in this context for emergency
cooperation. Emergency as used in this compact shall mean and include invasion, or other hostile
action, disaster, insurrection or imminent danger thereof. ( Id., p.15-16)

[131]

Cruz, Philippine Political Law, 1998, p. 95.

[132]

Record of the Constitutional Commission, Vol. III, pp. 266-267.

[133]
[134]
[135]

Record of the Constitutional Convention, pp. 648-649.


84 Phil. 368 (1949).
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.

[136]

Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280
US 610, 74 L ed 653, 50 S Ct 158.

[137]

Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.

[138]

Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.

[139]

De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.

[140]

Ibid.

[141]

In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series,
Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the
International Progress Organization, speaking on The United Nations, The International Rule of
Law and Terrorism cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive
Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
Section 2, Article III of the 1987 Constitution.

[142]
[143]

Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51.

[144]

Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.

[145]

An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition
the Government for Other Purposes.

[146]

Annex A of the Memorandum in G.R. No. 171396, pp. 271-273.

[147]

Ibid.

[148]

299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.

[149]

Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.

[150]

Section 5. Application requirements - All applications for a permit shall comply with the following
guidelines:

(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
[151]

Petition in G.R. No. 171400, p. 11.

[152]

No. L-64161, December 26, 1984, 133 SCRA 816.

[153]

[154]
[155]
[156]
[157]
[158]

Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653,
102925 & 102983, March 5, 1992, 207 SCRA 1.
Boyd v. United States, 116 U.S. 616 (1886).
Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
Ibid., pp. 432-433.
Ibid, pp. 507-508.
Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

EN BANC

[G.R. No. 148339. February 23, 2005]

LUCENA GRAND CENTRAL TERMINAL, INC., petitioner, vs. JAC


LINER, INC., respondent.
DECISION
CARPIO MORALES, J.:

Respondent, JAC Liner, Inc., a common carrier operating buses which ply
various routes to and from Lucena City, assailed, via a petition for prohibition and
injunction against the City of Lucena, its Mayor, and the Sangguniang
Panlungsod of Lucena before the Regional Trial Court (RTC) of Lucena City, City
Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia,
the same constituted an invalid exercise of police power, an undue taking of
private property, and a violation of the constitutional prohibition against
monopolies. The salient provisions of the ordinances are:
[1]

Ordinance No. 1631

[2]

AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL


TERMINAL, INC., A FRANCHISE TO CONSTRUCT, FINANCE,
ESTABLISH, OPERATE AND MAINTAIN A COMMON BUS-JEEPNEY
TERMINAL FACILITY IN THE CITY OF LUCENA
xxx

SECTION 1. There is hereby granted to the Lucena Grand Central Terminal,


Inc., its successors or assigns, hereinafter referred to as the grantee, a franchise
to construct, finance, establish, operate, and maintain a common bus-jeepney
terminal facility in the City of Lucena.
SECTION 2. This franchise shall continue for a period of twenty-five years,
counted from the approval of this Ordinance, and renewable at the option of the
grantee for another period of twenty-five (25) years upon such expiration.
xxx

SECTION 4. Responsibilities and Obligations of the City Government of


Lucena. During the existence of the franchise, the City Government of Lucena
shall have the following responsibilities and obligations:
xxx

(c) It shall not grant any third party any privilege and/or concession to operate a
bus, mini-bus and/or jeepney terminal.
xxx

Ordinance No. 1778

[3]

AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY


OF LUCENA OF ALL BUSES, MINI-BUSES AND OUT-OF-TOWN
PASSENGER JEEPNEYS AND FOR THIS PURPOSE, AMENDING
ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO. 1557,
SERIES OF 1995
xxx

SECTION 1. The entrance to the City of Lucena of all buses, mini-buses and
out-of-town passenger jeepneys is hereby regulated as follows:
(a) All buses, mini-buses and out-of-town passenger jeepneys shall
be prohibited from entering the city and are hereby directed to proceed to the
common terminal, for picking-up and/or dropping of their passengers.
(b) All temporary terminals in the City of Lucena are hereby declared
inoperable starting from the effectivity of this ordinance.
xxx

SECTION 3. a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby


amended to read as follows:
Buses, mini-buses, and jeepney type mini-buses from other municipalities
and/or local government units going to Lucena City are directed to proceed to
the Common Terminal located at Diversion Road, Brgy. Ilayang Dupay, to
unload and load passengers.
xxx

c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read


as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall utilize the facilities of the
Lucena Grand Central Terminal at Diversion Road, Brgy. Ilayang Dupay, this
City, and no other terminals shall be situated inside or within the City
of Lucena;
d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read
as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall avail of the facilities of the
Lucena Grand Central Terminal which is hereby designated as the officially
sanctioned common terminal for the City of Lucena;
e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read
as follows:

The Lucena Grand Central Terminal is the permanent common terminal a


s this is the entity which was given the exclusive franchise by the Sangguni
ang Panglungsod under Ordinance No. 1631;(Emphasis and underscoring
supplied)
These ordinances, by granting an exclusive franchise for twenty five years,
renewable for another twenty five years, to one entity for the construction and
operation of one common bus and jeepney terminal facility in Lucena City, to be
located outside the city proper, were professedly aimed towards alleviating the
traffic congestion alleged to have been caused by the existence of various bus
and jeepney terminals within the city, as the Explanatory Note-Whereas Clause
adopting Ordinance No. 1778 states:

WHEREAS, in line with the worsening traffic condition of the City of Lucena,
and with the purpose of easing and regulating the flow of the same, it is
imperative that the Buses, Mini-Buses and out-of-town jeepneys be prohibited
from maintaining terminals within the City, but instead directing to proceed to
the Lucena Grand Central Terminal for purposes of picking-up and/or dropping
off their passengers;
[4]

Respondent, who had maintained a terminal within the city, was one of those
affected by the ordinances.
Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the
grantee of the exclusive franchise for the operation of the common terminal, was
allowed to intervene in the petition before the trial court.
[5]

In the hearing conducted on November 25, 1998, all the parties agreed to
dispense with the presentation of evidence and to submit the case for resolution
solely on the basis of the pleadings filed.
[6]

By Order of March 31, 1999, Branch 54 of the Lucena RTC rendered


judgment, the dispositive portion of which reads:
[7]

WHEREFORE, in view of the foregoing premises, judgment is hereby


rendered, as follows:
1. Declaring City Ordinance No. 1631 as valid, having been issued in the
exercise of the police power of the City Government of Lucena insofar as the
grant of franchise to the Lucena Grand Central Terminal, Inc., to construct,
finance, establish, operate and maintain common bus-jeepney terminal facility
in the City of Lucena;
2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to
the effect that the City Government shall not grant any third party any privilege
and/or concession to operate a bus, mini-bus and/or jeepney terminal, as illegal
and ultra vires because it contravenes the provisions of Republic Act No. 7160,
otherwise known as The Local Government Code;
3. Declaring City Ordinance No. 1778 as null and void, the same being also an
ultra vires act of the City Government of Lucena arising from an invalid,
oppressive and unreasonable exercise of the police power, more specifically,
declaring illegal [sections 1(b), 3(c) and 3(e)];

4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the


respondents public officials, the City Mayor and the Sangguniang Panglungsod
of Lucena, to cease and desist from implementing Ordinance No. 1778
insofar as said ordinance prohibits or curtails petitioner from maintaining
and operating its own bus terminal subject to the conditions provided for in
Ordinance No. 1557, Sec. 3, which authorizes the construction of terminal
outside the poblacion of Lucena City; and likewise, insofar as said ordinance
directs and compels the petitioner to use the Lucena Grand Central
Terminal Inc., and furthermore, insofar as it declares that no other
terminals shall be situated, constructed, maintained or established inside
or within the City of Lucena; and furthermore,
5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central
Terminal Inc., dated October 19, 1998, is hereby DENIED for lack of merit.
SO ORDERED. (Emphasis and underscoring supplied)

[8]

Petitioners Motion for Reconsideration of the trial courts order having been
denied by Order of August 6, 1999, it elevated it via petition for review under
Rule 45 before this Court. This Court, by Resolution of November 24, 1999,
referred the petition to the Court of Appeals with which it has concurrent
jurisdiction, no special and important reason having been cited for it to take
cognizance thereof in the first instance.
[9]

[10]

[11]

[12]

By Decision of December 15, 2000, the appellate court dismissed the


petition and affirmed the challenged orders of the trial court. Its motion for
reconsideration having been denied by the appellate court by Resolution dated
June 5, 2001, petitioner once again comes to this Court via petition for review,
this time assailing the Decision and Resolution of the Court of Appeals.
[13]

[14]

[15]

[16]

Decision on the petition hinges on two issues, to wit: (1) whether the trial
court has jurisdiction over the case, it not having furnished the Office of the
Solicitor General copy of the orders it issued therein, and (2) whether the City of
Lucena properly exercised its police power when it enacted the subject
ordinances.
Petitioner argues that since the trial court failed to serve a copy of its
assailed orders upon the Office of the Solicitor General, it never acquired
jurisdiction over the case, it citingSection 22, Rule 3 of the Rules which
provides:

SEC. 22. Notice to the Solicitor General.In any action involving the validity of
any treaty, law, ordinance, executive order, presidential decree, rules or
regulations, the court in its discretion, may require the appearance of the
Solicitor General who may be heard in person or through representative duly
designated by him. (Emphasis and underscoring supplied)
Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which
respectively provide:

SEC. 3. Notice on Solicitor General. In any action which involves


the validity of a statute, executive order or regulation, or any other
governmental regulation, the Solicitor General shall be notified by the party
assailing the same and shall be entitled to be heard upon such question.

SEC. 4. Local government ordinances. In any action involving the validity of a


local government ordinance, the corresponding prosecutor or attorney of the
local government unit involved shall be similarly notified and entitled to be
heard. If such ordinance is alleged to be unconstitutional, the Solicitor General
shall also be notified and entitled to be heard. (Emphasis and underscoring
supplied)
Nowhere, however, is it stated in the above-quoted rules that failure to notify
the Solicitor General about the action is a jurisdictional defect.
In fact, Rule 3, Section 22 gives the courts in any action involving
the validity of any ordinance, inter alia, discretion to notify the Solicitor General.
Section 4 of Rule 63, which more specifically deals with cases assailing
the constitutionality, not just the validity, of a local government ordinance, directs
that the Solicitor General shallalso be notified and entitled to be heard. Who will
notify him, Sec. 3 of the same rule provides it is the party which is assailing the
local governments ordinance.
More importantly, however, this Court finds that no procedural defect, fatal or
otherwise, attended the disposition of the case. For respondent actually served a
copy of its petition upon the Office of the Solicitor General on October 1, 1998,
two days after it was filed. The Solicitor General has issued a Certification to that
effect. There was thus compliance with above-quoted rules.
[17]

Respecting the issue of whether police power was properly exercised when
the subject ordinances were enacted: As with the State, the local government
may be considered as having properly exercised its police power only if the
following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the
State, and (2) the means employed are reasonably necessary for the attainment
of the object sought to be accomplished and not unduly oppressive upon
individuals. Otherwise stated, there must be a concurrence of a lawful
subject and lawful method.
[18]

That traffic congestion is a public, not merely a private, concern, cannot be


gainsaid. In Calalang v. Williams which involved a statute authorizing the
Director of Public Works to promulgate rules and regulations to regulate and
control traffic on national roads, this Court held:
[19]

In enacting said law, therefore, the National Assembly was prompted by


considerations of public convenience and welfare. It was inspired by a desire
to relieve congestion of traffic, which is, to say the least, a menace to public
safety. Public welfare, then, lies at the bottom of the enactment of said law, and
the state in order to promote the general welfare may interfere with personal
liberty, with property, and with business and occupations. (Emphasis supplied)
[20]

The questioned ordinances having been enacted with the objective of


relieving traffic congestion in the City of Lucena, they involve public interest
warranting the interference of the State. The first requisite for the proper exercise
of police power is thus present.
Respondents suggestion to have this Court look behind the explicit objective
of the ordinances which, to it, was actually to benefit the private interest of
petitioner by coercing all bus operators to patronize its terminal does not lie.
Lim v. Pacquing instructs:
[21]

[22]

. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to
benefit a select group which was later given authority to operate the jai-alai
under PD No. 810. The examination of legislative motivation is generally
prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 438 [1971] per
Black, J.) There is, in the first place, absolute lack of evidence to support ADCs
allegation of improper motivation in the issuance of PD No. 771. In the second
place, as already averred, this Court cannot go behind the expressed and
proclaimed purposes of PD No. 771, which are reasonable and even laudable.
(Underscoring supplied)
[23]

This leaves for determination the issue of whether the means employed by
the Lucena Sangguniang Panlungsod to attain its professed objective were
reasonably necessary and not unduly oppressive upon individuals.
With the aim of localizing the source of traffic congestion in the city to a
single location, the subject ordinances prohibit the operation of all bus and
jeepney terminals within Lucena, including those already existing, and allow the
operation of only one common terminal located outside the city proper, the
franchise for which was granted to petitioner. The common carriers plying routes
to and from Lucena City are thus compelled to close down their existing terminals
and use the facilities of petitioner.
[24]

In De la Cruz v. Paras, this Court declared unconstitutional an ordinance


characterized by overbreadth. In that case, the Municipality of Bocaue, Bulacan
prohibited the operation of all night clubs, cabarets and dance halls within its
jurisdiction for the protection of public morals. Held the Court:
[25]

It cannot be said that such a sweeping exercise of a lawmaking power by Bocau


e could qualify under the term reasonable. The objective of fostering public mo
rals, a worthy and desirable end can be attainedby a measure that does not enco
mpass too wide a field. Certainly the ordinance on its face is characterized by o
verbreadth. The purpose sought to be achieved could have been attained by reas
onablerestrictions rather than by an absolute prohibition. The admonition in
Salaveria should be heeded: The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of personal or property
rights under the guise of police regulation. It is clear that in the guise of a
police regulation, there was in this instance a clear invasion of personal or
property rights, personal in the case of those individuals desirous of patronizing
those night clubs and property in terms of the investments made and salaries to
be earned by those therein employed. (Underscoring supplied)
[26]

In Lupangco v. Court of Appeals, this Court, in declaring unconstitutional


the resolution subject thereof, advanced a similar consideration. That case
involved a resolution issued by the Professional Regulation Commission which
prohibited examinees from attending review classes and receiving handout
materials, tips, and the like three days before the date of examination in order to
preserve the integrity and purity of the licensure examinations in accountancy.
Besides being unreasonable on its face and violative of academic freedom, the
measure was found to be more sweeping than what was necessary, viz:
[27]

Needless to say, the enforcement of Resolution No. 105 is not a guarantee that
the alleged leakages in the licensure examinations will be eradicated or at least
minimized. Making the examinees suffer by depriving them of legitimate
means of review or preparation on those last three precious days when they

should be refreshing themselves with all that they have learned in the review
classes and preparing their mental and psychological make-up for the
examination day itself would be like uprooting the tree to get rid of a rotten
branch. What is needed to be done by the respondent is to find out the
source of such leakages and stop it right there. If corrupt officials or
personnel should be terminated from their loss, then so be it. Fixers or
swindlers should be flushed out. Strict guidelines to be observed by examiners
should be set up and if violations are committed, then licenses should be
suspended or revoked. x x x (Emphasis and underscoring supplied)
[28]

As in De la Cruz and Lupangco, the ordinances assailed herein are


characterized by overbreadth. They go beyond what is reasonably necessary to
solve the traffic problem. Additionally, since the compulsory use of the terminal
operated by petitioner would subject the users thereof to fees, rentals and
charges, such measure is unduly oppressive, as correctly found by the appellate
court. What should have been done was to determine exactly where the
problem lies and then to stop it right there.
[29]

[30]

[31]

The true role of Constitutional Law is to effect an equilibrium between


authority and liberty so that rights are exercised within the framework of the
law and the laws are enacted with due deference to rights. (Underscoring
supplied)
[32]

A due deference to the rights of the individual thus requires a more careful
formulation of solutions to societal problems.
From the memorandum filed before this Court by petitioner, it is gathered
that the Sangguniang Panlungsod had identified the cause of traffic congestion to
be the indiscriminate loading and unloading of passengers by buses on the
streets of the city proper, hence, the conclusion that the terminals contributed to
the proliferation of buses obstructing traffic on the city streets.
[33]

Bus terminals per se do not, however, impede or help impede the flow of
traffic. How the outright proscription against the existence of all terminals, apart
from that franchised to petitioner, can be considered as reasonably necessary to
solve the traffic problem, this Court has not been enlightened. If terminals lack
adequate space such that bus drivers are compelled to load and unload
passengers on the streets instead of inside the terminals, then reasonable
specifications for the size of terminals could be instituted, with permits to operate
the same denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription against the
maintenance of terminals is so broad that even entities which might be able to
provide facilities better than the franchised terminal are barred from operating at
all.
Petitioner argues, however, that other solutions for the traffic problem have
already been tried but proven ineffective. But the grant of an exclusive franchise
to petitioner has not been shown to be the only solution to the problem.
While the Sangguniang Panlungsod, via Ordinance No. 1557, previously
directed bus owners and operators to put up their terminals outside the poblacion
of Lucena City, petitioner informs that said ordinance only resulted in the
relocation of terminals to other well-populated barangays, thereby giving rise to
traffic congestion in those areas. Assuming that information to be true, the
Sangguniang Panlungsod was not without remedy. It could have defined, among
[34]

[35]

other considerations, in a more precise manner, the area of relocation to avoid


such consequences.
As for petitioners argument that the challenged ordinances were enacted
pursuant to the power of the Sangguniang Panlungsod to [r]egulate traffic on all
streets and bridges; prohibitencroachments or obstacles thereon and, when
necessary in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places: Absent any showing,
nay allegation, that the terminals are encroaching upon public roads, they are not
obstacles. The buses which indiscriminately load and unload passengers on the
city streets are. The power then of the Sangguniang Panlungsod to prohibit
encroachments and obstacles does not extend to terminals.
[36]

Neither are terminals public nuisances as petitioner argues. For their


operation is a legitimate business which, by itself, cannot be said to be injurious
to the rights of property, health, or comfort of the community.
But even assuming that terminals are nuisances due to their alleged indirect
effects upon the flow of traffic, at most they are nuisance per accidens, not per
se.
Unless a thing is nuisance per se, however, it may not be abated via an
ordinance, without judicial proceedings, as was done in the case at bar.
In Estate of Gregoria Francisco v. Court of Appeals, this Court held:
[37]

Respondents can not seek cover under the general welfare clause authorizing
the abatement of nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity
(Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the
quonset building is a legitimate business. By its nature, it can not be said to be
injurious to rights of property, of health or of comfort of the community. If it be
a nuisance per accidens it may be so proven in a hearing conducted for that
purpose. It is not per se a nuisance warranting its summary abatement without
judicial intervention. (Underscoring supplied)
[38]

In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellantmunicipality similarly argued that the terminal involved therein is a nuisance that
may be abated by the Municipal Council via an ordinance, this Court held: Suffice
it to say that in the abatement of nuisances the provisions of the Civil Code
(Articles 694-707) must be observed and followed. This appellant failed to do.
[39]

As for petitioners claim that the challenged ordinances have actually been
proven effective in easing traffic congestion: Whether an ordinance is effective is
an issue different from whether it is reasonably necessary. It is
its reasonableness, not its effectiveness, which bears upon its constitutionality. If
the constitutionality of a law were measured by its effectiveness, then even
tyrannical laws may be justified whenever they happen to be effective.
The Court is not unaware of the resolutions of various barangays in Lucena
City supporting the establishment of a common terminal, and similar expressions
of support from the private sector, copies of which were submitted to this Court
by petitioner. The weight of popular opinion, however, must be balanced with that
of an individuals rights.

There is no question that not even the strongest moral conviction or the most
urgent public need, subject only to a few notable exceptions, will excuse the

bypassing of an individual's rights. It is no exaggeration to say that a person


invoking a right guaranteed under Article III of the Constitution is a majority of
one even as against the rest of the nation who would deny him that right.
[40]

WHEREFORE, the petition is hereby DENIED.


SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna,
Tinga, Chico-Nazario, and Garcia, JJ.,concur.

[1]

Records at 1-10.

[2]

Rollo at 118-120.

[3]

Id. at 226-229.

[4]

Id. at 227.

[5]

Records at 55-59.

[6]

Id. at 339.

[7]

Id. at 328-360.

[8]

Id. at 358-360.

[9]

Id. at 384-399.

[10]

Id. at 467-470.

[11]

CA Rollo at 18-59.

[12]

Id. at 327.

[13]

Id. at 548-557.

[14]

Id. at 560-572.

[15]

Id. at 622-623.

[16]

Rollo at 9-407 inclusive of Annexes A - Y.

[17]

CA Rollo at 498.

[18]

DECS v. San Diego, 180 SCRA 533, 537 (1989).

[19]

70 Phil. 726 (1940).

[20]

Id. at 733.

[21]

Rollo at 539.

[22]

240 SCRA 649 (1995).

[23]

Id. at 677-678.

[24]

Rollo at 505.

[25]

123 SCRA 569 (1983).

[26]

Id. at 578.

[27]

160 SCRA 848 (1988).

[28]

Id. at 860.

[29]

Supra.

[30]

Supra.

[31]

Rollo at 59.

[32]

CRUZ, I., CONSTITUTIONAL LAW 1 (1995).

[33]

Rollo at 496, 509-510.

[34]

Id. at 109.

[35]

Memorandum of Petitioner, id. at 510.

[36]

Section 458(5)(vi), LOCAL GOVERNMENT CODE of 1991.

[37]

199 SCRA 595 (1991).

[38]

Id. at 601.

[39]

3 SCRA 816 (1961).

[40]

Association of Small Landowners in the Philippines v. Sec. of Agrarian Reform, 175 SCRA 343,
375-376. (1989).

EN BANC

[G.R. No. 118127. April 12, 2005]

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the


City of Manila, HON. JOSELITO L. ATIENZA, in his capacity
as Vice-Mayor of the City of Manila and Presiding Officer of
the City Council of Manila, HON. ERNESTO A. NIEVA, HON.
GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR.,
HON. ROMUALDO S. MARANAN, HON. NESTOR C. PONCE,
JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON.
MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON.
BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON.
JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO
A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON.
ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON.
GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA,
HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU,
HON. KARLO Q. BUTIONG, HON. ROGELIO P. DELA PAZ,
HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R.
CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO
M. ABANTE, JR., HON. MA. LOURDES M. ISIP, HON.
ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA,
HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of
Manila, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR.,
as Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, respondents.
DECISION
TINGA, J.:

I know only that what is moral is what you feel good after and what is immoral
is what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by
oneself, is less immoral than if performed by someone else, who would be
well-intentioned in his dishonesty.
J. Christopher Gerald

Bonaparte in Egypt, Ch. I


The Courts commitment to the protection of morals is secondary to its fealty
to the fundamental law of the land. It is foremost a guardian of the Constitution
but not the conscience of individuals. And if it need be, the Court will not hesitate
to make the hammer fall, and heavily in the words of Justice Laurel, and uphold
the constitutional guarantees when faced with laws that, though not lacking in
zeal to promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition under Rule 45 (then Rule 42) of the
Revised Rules on Civil Procedure seeking the reversal of the Decision in Civil
Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower
court), is the validity of Ordinance No. 7783 (the Ordinance) of the City of
Manila.
[1]

[2]

[3]

[4]

The antecedents are as follows:


Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and
lodging houses. It built and opened Victoria Court in Malate which was licensed
as a motel although duly accredited with the Department of Tourism as a hotel.
On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a
Writ
of
Preliminary
Injunction
and/or
Temporary
Restraining
Order (RTC Petition) with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and
the members of the City Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional.
[5]

[6]

[7]

[8]

Enacted by the City Council on 9 March 1993 and approved by petitioner


City Mayor on 30 March 1993, the said Ordinance is entitled
[9]

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR


OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE
ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
THEREOF, AND FOR OTHER PURPOSES.
[10]

The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary


notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North,
Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in
the West, pursuant to P.D. 499 be allowed or authorized to contract and
engage in, any business providing certain forms of amusement,
entertainment, services and facilities where women are used as tools in
entertainment and which tend to disturb the community, annoy the
inhabitants, and adversely affect the social and moral welfare of the
community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs

6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of
the said officials are prohibited from issuing permits, temporary or
otherwise, or from granting licenses and accepting payments for the
operation of business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to,
the businesses enumerated in Section 1 hereof are hereby given three (3)
months from the date of approval of this ordinance within which to wind
up business operations or to transfer to any place outside of the ErmitaMalate area or convert said businesses to other kinds of business allowable
within the area,such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined
activities for wholesome family entertainment that cater to both local and
foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures
but also of cultural shows, stage and theatrical plays, art exhibitions,
concerts and the like.
11. Businesses allowable within the law and medium intensity
districts as provided for in the zoning ordinances for Metropolitan Manila,
except new warehouse or open-storage depot, dock or yard, motor repair
shop, gasoline service station, light industry with any machinery, or funeral
establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General
Manager, or person-in-charge of operation shall be liable thereof; PROVIDED
FURTHER, that in case of subsequent violation and conviction, the
premises of the erring establishment shall be closed and padlocked
permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9,
1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

In the RTC Petition, MTDC argued that the Ordinance erroneously and
improperly included in its enumeration of prohibited establishments, motels and
inns such as MTDCs Victoria Court considering that these were not
establishments for amusement or entertainment and they were not services or
facilities for entertainment, nor did they use women as tools for entertainment,
and neither did they disturb the community, annoy the inhabitants or adversely
affect the social and moral welfare of the community.
[11]

MTDC further advanced that the Ordinance was invalid and unconstitutional
for the following reasons: (1) The City Council has no power to prohibit the
operation of motels as Section 458 (a) 4 (iv) of the Local Government Code of
1991 (the Code) grants to the City Council only the power to regulate the
establishment, operation and maintenance of hotels, motels, inns, pension
houses, lodging houses and other similar establishments; (2) The Ordinance is
void as it is violative of Presidential Decree (P.D.) No. 499 which specifically
declared portions of the Ermita-Malate area as a commercial zone with certain
restrictions; (3) The Ordinance does not constitute a proper exercise of police
power as the compulsory closure of the motel business has no reasonable
relation to the legitimate municipal interests sought to be protected; (4)
The Ordinance constitutes an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its enactment; (5)
The Ordinance violates MTDCs constitutional rights in that: (a) it is confiscatory
and constitutes an invasion of plaintiffs property rights; (b) the City Council has
no power to find as a fact that a particular thing is a nuisance per se nor does it
have the power to extrajudicially destroy it; and (6) TheOrdinance constitutes a
denial of equal protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension houses, hotels,
lodging houses or other similar establishments, and for prohibiting said business
in the Ermita-Malate area but not outside of this area.
[12]

[13]

[14]

In their Answer dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the community
as provided for in Section 458 (a) 4 (vii) of the Local Government Code, which
reads, thus:
[15]

[16]

Section 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:
....
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical
performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for

entertainment or amusement; regulate such other events or activities for


amusement or entertainment, particularly those which tend to disturb
the community or annoy the inhabitants, or require the suspension or
suppression of the same; or, prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the
community.
Citing Kwong Sing v. City of Manila, petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to control,
to govern and to restrain places of exhibition and amusement.
[17]

[18]

Petitioners likewise asserted that the Ordinance was enacted by the City
Council of Manila to protect the social and moral welfare of the community in
conjunction with its police power as found in Article III, Section 18(kk) of Republic
Act No. 409, otherwise known as the Revised Charter of the City of Manila
(Revised Charter of Manila) which reads, thus:
[19]

[20]

ARTICLE III
THE MUNICIPAL BOARD
...
Section 18. Legislative powers. The Municipal Board shall have the
following legislative powers:
...
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort, convenience,
and general welfare of the city and its inhabitants, and such others as
may be necessary to carry into effect and discharge the powers and
duties conferred by this chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six
months imprisonment, or both such fine and imprisonment, for a single
offense.
Further, the petitioners noted, the Ordinance had the presumption of validity;
hence, private respondent had the burden to prove its illegality or
unconstitutionality.
[21]

Petitioners also maintained that there was no inconsistency between P.D.


499 and the Ordinance as the latter simply disauthorized certain forms of
businesses and allowed the Ermita-Malate area to remain a commercial zone.
The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post
facto as it was prospective in operation. The Ordinance also did not infringe the
equal protection clause and cannot be denounced as class legislation as there
existed substantial and real differences between the Ermita-Malate area and
other places in the City of Manila.
[22]

[23]

[24]

On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio)
issued an ex-parte temporary restraining order against the enforcement of
the Ordinance. And on 16 July 1993, again in an intrepid gesture, he granted
the writ of preliminary injunction prayed for by MTDC.
[25]

[26]

After trial, on 25 November 1994, Judge Laguio rendered the


assailed Decision, enjoining the petitioners from implementing the Ordinance.
The dispositive portion of said Decisionreads:
[27]

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3],


Series of 1993, of the City of Manila null and void, and making permanent the
writ of preliminary injunction that had been issued by this Court against the
defendant. No costs.
SO ORDERED.

[28]

Petitioners filed with the lower court a Notice of Appeal on 12 December


1994, manifesting that they are elevating the case to this Court under then Rule
42 on pure questions of law.
[29]

[30]

On 11 January 1995, petitioners filed the present Petition, alleging that the
following errors were committed by the lower court in its ruling: (1) It erred in
concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding that
the questioned Ordinance contravenes P.D. 499 which allows operators of all
kinds of commercial establishments, except those specified therein; and (3) It
erred in declaring the Ordinance void and unconstitutional.
[31]

[32]

In the Petition and in its Memorandum, petitioners in essence repeat the


assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary
power of the State and the general welfare clause exercised by local government
units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code. They allege that
the Ordinance is a valid exercise of police power; it does not contravene P.D.
499; and that it enjoys the presumption of validity.
[33]

[34]

[35]

In its Memorandum dated 27 May 1996, private respondent maintains that


the Ordinance is ultra vires and that it is void for being repugnant to the general
law. It reiterates that the questioned Ordinance is not a valid exercise of police
power; that it is violative of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal protection
clause; and that it confers on petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules to guide and control his
actions.
[36]

This is an opportune time to express the Courts deep sentiment and


tenderness for the Ermita-Malate area being its home for several decades. A
long-time resident, the Court witnessed the areas many turn of events. It relished
its glory days and endured its days of infamy. Much as the Court harks back to
the resplendent era of the Old Manila and yearns to restore its lost grandeur, it
believes that the Ordinance is not the fitting means to that end. The Court is of
the opinion, and so holds, that the lower court did not err in declaring
theOrdinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every
sentence thereof violates a constitutional provision. The prohibitions and
sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from attempts at
rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions
has held that for an ordinance to be valid, it must not only be within the corporate

powers of the local government unit to enact and must be passed according to
the procedure prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any statute; (2) must
not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.
[37]

Anent the first criterion, ordinances shall only be valid when they are not
contrary to the Constitution and to the laws. The Ordinance must satisfy two
requirements: it must pass muster under the test of constitutionality and the test
of consistency with the prevailing laws. That ordinances should be constitutional
uphold the principle of the supremacy of the Constitution. The requirement that
the enactment must not violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their derivative legislative
power, a delegation of legislative power from the national legislature. The
delegate cannot be superior to the principal or exercise powers higher than those
of the latter.
[38]

[39]

This 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. The national legislature is still the
principal of the local government units, which cannot defy its will or modify or
violate it.
[40]

The Ordinance was passed by the City Council in the exercise of its police
power, an enactment of the City Council acting as agent of Congress. Local
government units, as agencies of the State, are endowed with police power in
order to effectively accomplish and carry out the declared objects of their
creation. This delegated police power is found in Section 16 of the Code, known
as the general welfare clause, viz:
[41]

SECTION 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.
Local government units exercise police power through their respective
legislative bodies; in this case, the sangguniang panlungsod or the city council.
The Code empowers the legislative bodies to enact ordinances, approve
resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the Code
and in the proper exercise of the corporate powers of the province/city/
municipality provided under the Code. The inquiry in this Petition is concerned
with the validity of the exercise of such delegated power.
[42]

The Ordinance contravenes


the Constitution

The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the
limitation that its exercise must be reasonable and for the public good. In the
case at bar, the enactment of the Ordinance was an invalid exercise of delegated
power as it is unconstitutional and repugnant to general laws.
[43]

The relevant constitutional provisions are the following:

SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
[44]

SEC. 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
[45]

SEC. 1. No person shall be deprived of life, liberty or property without due


process of law, nor shall any person be denied the equal protection of laws.

[46]

Sec. 9. Private property shall not be taken for public use without just
compensation.
[47]

A. The Ordinance infringes


the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o
person shall be deprived of life, liberty or property without due process of law. . . .
[48]

There is no controlling and precise definition of due process. It furnishes


though a standard to which governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. This
standard is aptly described as a responsiveness to the supremacy of reason,
obedience to the dictates of justice, and as such it is a limitation upon the
exercise of the police power.
[49]

[50]

The purpose of the guaranty is to prevent governmental encroachment


against the life, liberty and property of individuals; to secure the individual from
the arbitrary exercise of the powers of the government, unrestrained by the
established principles of private rights and distributive justice; to protect property
from confiscation by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law.
[51]

The guaranty serves as a protection against arbitrary regulation, and private


corporations and partnerships are persons within the scope of the guaranty
insofar as their property is concerned.
[52]

This clause has been interpreted as imposing two separate limits on


government, usually called procedural due process and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures that
the government must follow before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with what kind of notice
and what form of hearing the government must provide when it takes a particular
action.
[53]

Substantive due process, as that phrase connotes, asks whether the


government has an adequate reason for taking away a persons life, liberty, or
property. In other words, substantive due process looks to whether there is a
sufficient justification for the governments action. Case law in the United States
(U.S.) tells us that whether there is such a justification depends very much on the
level of scrutiny used. For example, if a law is in an area where only rational
basis review is applied, substantive due process is met so long as the law is
rationally related to a legitimate government purpose. But if it is an area where
strict scrutiny is used, such as for protecting fundamental rights, then the
government will meet substantive due process only if it can prove that the law is
necessary to achieve a compelling government purpose.
[54]

[55]

[56]

The police power granted to local government units must always be


exercised with utmost observance of the rights of the people to due process and
equal protection of the law. Such power cannot be exercised whimsically,
arbitrarily or despotically as its exercise is subject to a qualification, limitation or
restriction demanded by the respect and regard due to the prescription of the
fundamental law, particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public welfare.
Due process requires the intrinsic validity of the law in interfering with the rights
of the person to his life, liberty and property.
[57]

[58]

[59]

Requisites for the valid exercise


of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of constitutional
infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals. It
must be evident that no other alternative for the accomplishment of the purpose
less intrusive of private rights can work. A reasonable relation must exist between
the purposes of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public interest,
personal rights and those pertaining to private property will not be permitted to be
arbitrarily invaded.
[60]

[61]

Lacking a concurrence of these two requisites, the police measure shall be


struck down as an arbitrary intrusion into private rights a violation of the due
process clause.
[62]

The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are allegedly
operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels.
Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila had already taken
judicial notice of the alarming increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to existence of motels, which provide
a necessary atmosphere for clandestine entry, presence and exit and thus
become the ideal haven for prostitutes and thrill-seekers.
[63]

[64]

The object of the Ordinance was, accordingly, the promotion and protection
of the social and moral values of the community. Granting for the sake of
argument that the objectives of theOrdinance are within the scope of the City

Councils police powers, the means employed for the accomplishment thereof
were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make
all reasonable regulations looking to the promotion of the moral and social values
of the community. However, the worthy aim of fostering public morals and the
eradication of the communitys social ills can be achieved through means less
restrictive of private rights; it can be attained by reasonable restrictions rather
than by an absolute prohibition. The closing down and transfer of businesses or
their conversion into businesses allowed under the Ordinance have no
reasonable relation to the accomplishment of its purposes. Otherwise stated, the
prohibition of the enumerated establishments will not per se protect and promote
the social and moral welfare of the community; it will not in itself eradicate the
alluded social ills of prostitution, adultery, fornication nor will it arrest the spread
of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of
ill-repute and establishments of the like which the City Council may lawfully
prohibit, it is baseless and insupportable to bring within that classification sauna
parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs,
discotheques, cabarets, dance halls, motels and inns. This is not warranted
under the accepted definitions of these terms. The enumerated establishments
are lawful pursuits which are not per se offensive to the moral welfare of the
community.
[65]

That these are used as arenas to consummate illicit sexual affairs and as
venues to further the illegal prostitution is of no moment. We lay stress on the
acrid truth that sexual immorality, being a human frailty, may take place in the
most innocent of places that it may even take place in the substitute
establishments enumerated under Section 3 of the Ordinance. If the flawed logic
of the Ordinance were to be followed, in the remote instance that an immoral
sexual act transpires in a church cloister or a court chamber, we would behold
the spectacle of the City of Manila ordering the closure of the church or court
concerned. Every house, building, park, curb, street or even vehicles for that
matter will not be exempt from the prohibition. Simply because there are no pure
places where there are impure men. Indeed, even the Scripture and the Tradition
of Christians churches continually recall the presence and universality of sin in
mans history.
[66]

The problem, it needs to be pointed out, is not the establishment, which by its
nature cannot be said to be injurious to the health or comfort of the community
and which in itself is amoral, but the deplorable human activity that may occur
within its premises. While a motel may be used as a venue for immoral sexual
activity, it cannot for that reason alone be punished. It cannot be classified as a
house of ill-repute or as a nuisance per se on a mere likelihood or a naked
assumption. If that were so and if that were allowed, then the Ermita-Malate area
would not only be purged of its supposed social ills, it would be extinguished of
its soul as well as every human activity, reprehensible or not, in its every nook
and cranny would be laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues
of morality. Try as the Ordinance may to shape morality, it should not foster the
illusion that it can make a moral man out of it because immorality is not a thing, a
building or establishment; it is in the hearts of men. The City Council instead
should regulate human conduct that occurs inside the establishments, but not to
the detriment of liberty and privacy which are covenants, premiums and
blessings of democracy.

While petitioners earnestness at curbing clearly objectionable social ills is


commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those individuals
desirous of owning, operating and patronizing those motels and property in terms
of the investments made and the salaries to be paid to those therein employed. If
the City of Manila so desires to put an end to prostitution, fornication and other
social ills, it can instead impose reasonable regulations such as daily inspections
of the establishments for any violation of the conditions of their licenses or
permits; it may exercise its authority to suspend or revoke their licenses for these
violations; and it may even impose increased license fees. In other words, there
are other means to reasonably accomplish the desired end.
[67]

Means employed are


constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given
three (3) months from the date of approval of the Ordinancewithin which to wind
up business operations or to transfer to any place outside the Ermita-Malate area
or convert said businesses to other kinds of business allowable within the area.
Further, it states in Section 4 that in cases of subsequent violations of the
provisions of the Ordinance, the premises of the erring establishment shall be
closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on
the constitutional guarantees of a persons fundamental right to liberty and
property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical restraint
of the person of the citizen, but is deemed to embrace the right of man to enjoy
the facilities with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare. In accordance with this
case, the rights of the citizen to be free to use his faculties in all lawful ways; to
live and work where he will; to earn his livelihood by any lawful calling; and to
pursue any avocation are all deemed embraced in the concept of liberty.
[68]

[69]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to
clarify the meaning of liberty. It said:
[70]

While the Court has not attempted to define with exactness the liberty. . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognizedas essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the
meaning of liberty must be broad indeed.

In another case, it also confirmed that liberty protected by the due process
clause includes personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education. In explaining the
respect the Constitution demands for the autonomy of the person in making
these choices, the U.S. Supreme Court explained:

These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define ones own concept of existence, of meaning, of
universe, and of the mystery of human life. Beliefs about these matters could
not define the attributes of personhood where they formed under compulsion of
the State.
[71]

Persons desirous to own, operate and patronize the enumerated


establishments under Section 1 of the Ordinance may seek autonomy for these
purposes.
Motel patrons who are single and unmarried may invoke this right to
autonomy to consummate their bonds in intimate sexual conduct within the
motels premisesbe it stressed that their consensual sexual behavior does not
contravene any fundamental state policy as contained in the Constitution.
Adults have a right to choose to forge such relationships with others in the
confines of their own private lives and still retain their dignity as free persons.
The liberty protected by the Constitution allows persons the right to make this
choice. Their right to liberty under the due process clause gives them the full
right to engage in their conduct without intervention of the government, as long
as they do not run afoul of the law. Liberty should be the rule and restraint the
exception.
[72]

[73]

Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of all freedomit is the most
comprehensive of rights and the right most valued by civilized men.
[74]

The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:
[75]

Man is one among many, obstinately refusing reduction to unity. His


separateness, his isolation, are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations are built. He cannot
abandon the consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If his will is
set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe,
the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life
of the citizen.
[76]

There is a great temptation to have an extended discussion on these civil


liberties but the Court chooses to exercise restraint and restrict itself to the issues
presented when it should. The previous pronouncements of the Court are not to
be interpreted as a license for adults to engage in criminal conduct. The
reprehensibility of such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be prosecuted for their
illegal conduct, they should suffer the consequences of the choice they have
made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially
divests the respondent of the beneficial use of its property. The Ordinance in
Section 1 thereof forbids the running of the enumerated businesses in the
Ermita-Malate area and in Section 3 instructs its owners/operators to wind up
business operations or to transfer outside the area or convert said businesses
into allowed businesses. An ordinance which permanently restricts the use of
property that it can not be used for any reasonable purpose goes beyond
regulation and must be recognized as a taking of the property without just
compensation. It is intrusive and violative of the private property rights of
individuals.
[77]

[78]

The Constitution expressly provides in Article III, Section 9, that private


property shall not be taken for public use without just compensation. The
provision is the most important protection of property rights in the Constitution.
This is a restriction on the general power of the government to take property. The
constitutional provision is about ensuring that the government does not
confiscate the property of some to give it to others. In part too, it is about loss
spreading. If the government takes away a persons property to benefit society,
then society should pay. The principal purpose of the guarantee is to bar the
Government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.
[79]

There are two different types of taking that can be identified. A possessory
taking occurs when the government confiscates or physically occupies property.
A regulatory taking occurs when the governments regulation leaves no
reasonable economically viable use of the property.
[80]

In the landmark case of Pennsylvania Coal v. Mahon, it was held that a


taking also could be found if government regulation of the use of property went
too far. When regulation reaches a certain magnitude, in most if not in all cases
there must be an exercise of eminent domain and compensation to support the
act. While property may be regulated to a certain extent, if regulation goes too far
it will be recognized as a taking.
[81]

[82]

No formula or rule can be devised to answer the questions of what is too far
and when regulation becomes a taking. In Mahon, Justice Holmes recognized
that it was a question of degree and therefore cannot be disposed of by general
propositions. On many other occasions as well, the U.S. Supreme Court has said
that the issue of when regulation constitutes a taking is a matter of considering
the facts in each case. The Court asks whether justice and fairness require that
the economic loss caused by public action must be compensated by the
government and thus borne by the public as a whole, or whether the loss should
remain concentrated on those few persons subject to the public action.
[83]

What is crucial in judicial consideration of regulatory takings is that


government regulation is a taking if it leaves no reasonable economically viable

use of property in a manner that interferes with reasonable expectations for use.
A regulation that permanently denies all economically beneficial or productive
use of land is, from the owners point of view, equivalent to a taking unless
principles of nuisance or property law that existed when the owner acquired the
land make the use prohibitable. When the owner of real property has been
called upon to sacrifice all economically beneficial uses in the name of the
common good, that is, to leave his property economically idle, he has suffered a
taking.
[84]

[85]

[86]

A regulation which denies all economically beneficial or productive use of


land will require compensation under the takings clause. Where a regulation
places limitations on land that fall short of eliminating all economically beneficial
use, a taking nonetheless may have occurred, depending on a complex of factors
including the regulations economic effect on the landowner, the extent to which
the regulation interferes with reasonable investment-backed expectations and the
character of government action. These inquiries are informed by the purpose of
the takings clause which is to prevent the government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by
the public as a whole.
[87]

A restriction on use of property may also constitute a taking if not reasonably


necessary to the effectuation of a substantial public purpose or if it has an unduly
harsh impact on the distinct investment-backed expectations of the owner.
[88]

The Ordinance gives the owners and operators of the prohibited


establishments three (3) months from its approval within which to wind up
business operations or to transfer to any place outside of the Ermita-Malate area
or convert said businesses to other kinds of business allowable within the area.
The directive to wind up business operations amounts to a closure of the
establishment, a permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to accommodate an
allowed business, the structure which housed the previous business will be left
empty and gathering dust. Suppose he transfers it to another area, he will
likewise leave the entire establishment idle. Consideration must be given to the
substantial amount of money invested to build the edifices which the owner
reasonably expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in a
manner that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the ErmitaMalate area or to convert into allowed businessesare confiscatory as well. The
penalty of permanent closure in cases of subsequent violations found in Section
4 of the Ordinance is also equivalent to a taking of private property.
The second option instructs the owners to abandon their property and build
another one outside the Ermita-Malate area. In every sense, it qualifies as a
taking without just compensation with an additional burden imposed on the owner
to build another establishment solely from his coffers. The proffered solution does
not put an end to the problem, it merely relocates it. Not only is this impractical, it
is unreasonable, onerous and oppressive. The conversion into allowed
enterprises is just as ridiculous. How may the respondent convert a motel into a
restaurant or a coffee shop, art gallery or music lounge without essentially
destroying its property? This is a taking of private property without due process of
law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or transfer
his business, otherwise it will be closed permanently after a subsequent violation
should be borne by the public as this end benefits them as a whole.

Petitioners cannot take refuge in classifying the measure as a zoning


ordinance. A zoning ordinance, although a valid exercise of police power, which
limits a wholesome property to a use which can not reasonably be made of it
constitutes the taking of such property without just compensation. Private
property which is not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such principle finds no support in
the principles of justice as we know them. The police powers of local government
units which have always received broad and liberal interpretation cannot be
stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent
domain. It needs restating that the property taken in the exercise of police power
is destroyed because it is noxious or intended for a noxious purpose while the
property taken under the power of eminent domain is intended for a public use or
purpose and is therefore wholesome. If it be of public benefit that a wholesome
property remain unused or relegated to a particular purpose, then certainly the
public should bear the cost of reasonable compensation for the condemnation of
private property for public use.
[89]

[90]

Further, the Ordinance fails to set up any standard to guide or limit the
petitioners actions. It in no way controls or guides the discretion vested in them. It
provides no definition of the establishments covered by it and it fails to set forth
the conditions when the establishments come within its ambit of prohibition.
The Ordinance confers upon the mayor arbitrary and unrestricted power to close
down establishments. Ordinances such as this, which make possible abuses in
its execution, depending upon no conditions or qualifications whatsoever other
than the unregulated arbitrary will of the city authorities as the touchstone by
which its validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its impartial enforcement
could be secured.
[91]

Ordinances placing restrictions upon the lawful use of property must, in order
to be valid and constitutional, specify the rules and conditions to be observed and
conduct to avoid; and must not admit of the exercise, or of an opportunity for the
exercise, of unbridled discretion by the law enforcers in carrying out its
provisions.
[92]

Thus, in Coates v. City of Cincinnati, as cited in People v. Nazario, the


U.S. Supreme Court struck down an ordinance that had made it illegal for three
or more persons to assemble on any sidewalk and there conduct themselves in a
manner annoying to persons passing by. The ordinance was nullified as it
imposed no standard at all because one may never know in advance what
annoys some people but does not annoy others.
[93]

[94]

Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community. The cited case
supports the nullification of the Ordinance for lack of comprehensible standards
to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These lawful
establishments may be regulated, but not prevented from carrying on their
business. This is a sweeping exercise of police power that is a result of a lack of
imagination on the part of the City Council and which amounts to an interference
into personal and private rights which the Court will not countenance. In this
regard, we take a resolute stand to uphold the constitutional guarantee of the
right to liberty and property.

Worthy of note is an example derived from the U.S. of a reasonable


regulation which is a far cry from the ill-considered Ordinance enacted by the City
Council.
In FW/PBS, INC. v. Dallas, the city of Dallas adopted a comprehensive
ordinance regulating sexually oriented businesses, which are defined to include
adult arcades, bookstores, video stores, cabarets, motels, and theaters as well
as escort agencies, nude model studio and sexual encounter centers. Among
other things, the ordinance required that such businesses be licensed. A group of
motel owners were among the three groups of businesses that filed separate
suits challenging the ordinance. The motel owners asserted that the city violated
the due process clause by failing to produce adequate support for its supposition
that renting room for fewer than ten (10) hours resulted in increased crime and
other secondary effects. They likewise argued than the ten (10)-hour limitation on
the rental of motel rooms placed an unconstitutional burden on the right to
freedom of association. Anent the first contention, the U.S. Supreme Court held
that the reasonableness of the legislative judgment combined with a study which
the city considered, was adequate to support the citys determination that motels
permitting room rentals for fewer than ten (10 ) hours should be included within
the licensing scheme. As regards the second point, the Court held that limiting
motel room rentals to ten (10) hours will have no discernible effect on personal
bonds as those bonds that are formed from the use of a motel room for fewer
than ten (10) hours are not those that have played a critical role in the culture
and traditions of the nation by cultivating and transmitting shared ideals and
beliefs.
[95]

The ordinance challenged in the above-cited case merely regulated the


targeted businesses. It imposed reasonable restrictions; hence, its validity was
upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila, it needs pointing out, is also different from this case in
that what was involved therein was a measure which regulated the mode in
which motels may conduct business in order to put an end to practices which
could encourage vice and immorality. Necessarily, there was no valid objection
on due process or equal protection grounds as the ordinance did not prohibit
motels. The Ordinance in this case however is not a regulatory measure but is an
exercise of an assumed power to prohibit.
[96]

[97]

The foregoing premises show that the Ordinance is an unwarranted and


unlawful curtailment of property and personal rights of citizens. For being
unreasonable and an undue restraint of trade, it cannot, even under the guise of
exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated differently, so as to give undue
favor to some and unjustly discriminate against others. The guarantee means
that no person or class of persons shall be denied the same protection of laws
which is enjoyed by other persons or other classes in like circumstances. The
equal protection of the laws is a pledge of the protection of equal laws. It limits
governmental discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.
[98]

[99]

[100]

[101]

The Court has explained the scope of the equal protection clause in this
wise:

What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: The ideal situation is for the laws benefits to be available to all,
that none be placed outside the sphere of its coverage. Only thus could chance
and favor be excluded and the affairs of men governed by that serene and
impartial uniformity, which is of the very essence of the idea of law. There is
recognition, however, in the opinion that what in fact exists cannot approximate
the ideal. Nor is the law susceptible to the reproach that it does not take into
account the realities of the situation. The constitutional guarantee then is not to
be given a meaning that disregards what is, what does in fact exist. To assure
that the general welfare be promoted, which is the end of law, a regulatory
measure may cut into the rights to liberty and property. Those adversely
affected may under such circumstances invoke the equal protection clause only
if they can show that the governmental act assailed, far from being inspired by
the attainment of the common weal was prompted by the spirit of hostility, or at
the very least, discrimination that finds no support in reason. Classification is
thus not ruled out, it being sufficient to quote from the Tuason decision anew
that the laws operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the
liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person
under circumstances which, if not identical, are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be
treated in the same fashion, whatever restrictions cast on some in the group
equally binding on the rest.
[102]

Legislative bodies are allowed to classify the subjects of legislation. If the


classification is reasonable, the law may operate only on some and not all of the
people without violating the equal protection clause. The classification must, as
an indispensable requisite, not be arbitrary. To be valid, it must conform to the
following requirements:
[103]

1) It must be based on substantial distinctions.


2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]

In the Courts view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By
definition, all are commercial establishments providing lodging and usually meals
and other services for the public. No reason exists for prohibiting motels and inns
but not pension houses, hotels, lodging houses or other similar establishments.
The classification in the instant case is invalid as similar subjects are not similarly
treated, both as to rights conferred and obligations imposed. It is arbitrary as it
does not rest on substantial distinctions bearing a just and fair relation to the
purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and
operation of motels in the Ermita-Malate area but not outside of this area. A
noxious establishment does not become any less noxious if located outside the
area.

The standard where women are used as tools for entertainment is also
discriminatory as prostitutionone of the hinted ills the Ordinance aims to banishis
not a profession exclusive to women. Both men and women have an equal
propensity to engage in prostitution. It is not any less grave a sin when men
engage in it. And why would the assumption that there is an ongoing immoral
activity apply only when women are employed and be inapposite when men are
in harness? This discrimination based on gender violates equal protection as it is
not substantially related to important government objectives. Thus, the
discrimination is invalid.
[105]

Failing the test of constitutionality, the Ordinance likewise failed to pass the
test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers
local government units to regulate, and not prohibit, the establishments
enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar establishments is
found in Section 458 (a) 4 (iv), which provides that:

Section 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:
...
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
...
(iv) Regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses,
and other similar establishments, including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of
any entertainment or amusement facilities, and to prohibit certain forms of
amusement or entertainment is provided under Section 458 (a) 4 (vii) of the
Code, which reads as follows:

Section 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:

...
(4) Regulate activities relative to the use of land, buildings and structures
within the city in order to promote the general welfare and for said purpose
shall:
...
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or amusement; regulate
such other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants, or require
the suspension or suppression of the same; or, prohibit certain forms of
amusement or entertainment in order to protect the social and moral welfare of
the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments, the only
power of the City Council to legislate relative thereto is to regulate them to
promote the general welfare. The Code still withholds from cities the power to
suppress and prohibit altogether the establishment, operation and maintenance
of such establishments. It is well to recall the rulings of the Court in Kwong Sing
v. City of Manila that:
[106]

The word regulate, as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
regulate should not be construed as synonymous with suppress or prohibit.
Consequently, under the power to regulate laundries, the municipal authorities
could make proper police regulations as to the mode in which the employment
or business shall be exercised.
[107]

And in People v. Esguerra, wherein the Court nullified an ordinance of the


Municipality of Tacloban which prohibited the selling, giving and dispensing of
liquor ratiocinating that the municipality is empowered only to regulate the same
and not prohibit. The Court therein declared that:
[108]

(A)s a general rule when a municipal corporation is specifically given authority


or power to regulate or to license and regulate the liquor traffic, power to
prohibit is impliedly withheld.
[109]

These doctrines still hold contrary to petitioners assertion that they were
modified by the Code vesting upon City Councils prohibitory powers.
[110]

Similarly, the City Council exercises regulatory powers over public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement as found in the first clause of Section 458 (a) 4 (vii).
Its powers to regulate, suppress and suspend such other events or activities for
amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants and to prohibit certain forms of amusement
or entertainment in order to protect the social and moral welfare of the
community are stated in the second and third clauses, respectively of the same

Section. The several powers of the City Council as provided in Section 458 (a) 4
(vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;),
the use of which indicates that the clauses in which these powers are set forth
are independent of each other albeit closely related to justify being put together
in a single enumeration or paragraph. These powers, therefore, should not be
confused, commingled or consolidated as to create a conglomerated and unified
power of regulation, suppression and prohibition.
[111]

[112]

The Congress unequivocably specified the establishments and forms of


amusement or entertainment subject to regulation among which are beerhouses,
hotels, motels, inns, pension houses, lodging houses, and other similar
establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance
halls, sauna baths, massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be
included as among other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants or
certain forms of amusement or entertainment which the City Council may
suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly
granted to it and those which are necessarily implied or incidental to the exercise
thereof. By reason of its limited powers and the nature thereof, said powers are
to be construed strictissimi juris and any doubt or ambiguity arising out of the
terms used in granting said powers must be construed against the City Council.
Moreover, it is a general rule in statutory construction that the express mention
of one person, thing, or consequence is tantamount to an express exclusion of all
others.Expressio unius est exclusio alterium. This maxim is based upon the rules
of logic and the natural workings of human mind. It is particularly applicable in the
construction of such statutes as create new rights or remedies, impose penalties
or punishments, or otherwise come under the rule of strict construction.
[113]

[114]

The argument that the City Council is empowered to enact the Ordinance by
virtue of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the
Revised Charter of Manila is likewise without merit. On the first point, the ruling of
the Court in People v. Esguerra, is instructive. It held that:
[115]

The powers conferred upon a municipal council in the general welfare clause,
or section 2238 of the Revised Administrative Code, refers to matters not
covered by the other provisions of the same Code, and therefore it can not be
applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g) to
municipal councils. To hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in question, notwithstanding
the provision of section 2242 (g), would be to make the latter superfluous and
nugatory, because the power to prohibit, includes the power to regulate, the
selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression
of the legislative will must necessarily prevail and override the earlier law, the
Revised Charter of Manila.Legis posteriores priores contrarias abrogant, or later
statute repeals prior ones which are repugnant thereto. As between two laws on
the same subject matter, which are irreconcilably inconsistent, that which is
passed later prevails, since it is the latest expression of legislative will. If there
is an inconsistency or repugnance between two statutes, both relating to the
same subject matter, which cannot be removed by any fair and reasonable
[116]

method of interpretation, it is the latest expression of the legislative will which


must prevail and override the earlier.
[117]

Implied repeals are those which take place when a subsequently enacted law
contains provisions contrary to those of an existing law but no provisions
expressly repealing them. Such repeals have been divided into two general
classes: those which occur where an act is so inconsistent or irreconcilable with
an existing prior act that only one of the two can remain in force and those which
occur when an act covers the whole subject of an earlier act and is intended to
be a substitute therefor. The validity of such a repeal is sustained on the ground
that the latest expression of the legislative will should prevail.
[118]

In addition, Section 534(f) of the Code states that 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. Thus,
submitting to petitioners interpretation that the Revised Charter of Manila
empowers the City Council to prohibit motels, that portion of the Charter stating
such must be considered repealed by the Code as it is at variance with the latters
provisions granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the
general welfare clause authorizing the abatement of nuisances without judicial
proceedings. That tenet applies to a nuisance per se, or one which affects the
immediate safety of persons and property and may be summarily abated under
the undefined law of necessity. It can not be said that motels are injurious to the
rights of property, health or comfort of the community. It is a legitimate business.
If it be a nuisance per accidens it may be so proven in a hearing conducted for
that purpose. A motel is not per se a nuisance warranting its summary abatement
without judicial intervention.
[119]

Notably, the City Council was conferred powers to prevent and prohibit
certain activities and establishments in another section of the Code which is
reproduced as follows:

Section 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:
...
(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;

...
If it were the intention of Congress to confer upon the City Council the power
to prohibit the establishments enumerated in Section 1 of the Ordinance, it would
have so declared in uncertain terms by adding them to the list of the matters it
may prohibit under the above-quoted Section. The Ordinance now vainly
attempts to lump these establishments with houses of ill-repute and expand the
City Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of
the Code in an effort to overreach its prohibitory powers. It is evident that these
establishments may only be regulated in their establishment, operation and
maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can
be gleaned from another Section of the Code. Section 131 under the Title on
Local Government Taxation expressly mentioned proprietors or operators of
massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging
houses as among the contractors defined in paragraph (h) thereof. The same
Section also defined amusement as a pleasurable diversion and entertainment,
synonymous to relaxation, avocation, pastime or fun; and amusement places to
include theaters, cinemas, concert halls, circuses and other places of
amusement where one seeks admission to entertain oneself by seeing or viewing
the show or performances. Thus, it can be inferred that the Code considers these
establishments as legitimate enterprises and activities. It is well to recall the
maxim reddendo singula singulis which means that words in different parts of a
statute must be referred to their appropriate connection, giving to each in its
place, its proper force and effect, and, if possible, rendering none of them
useless or superfluous, even if strict grammatical construction demands
otherwise. Likewise, where words under consideration appear in different
sections or are widely dispersed throughout an act the same principle applies.
[120]

Not only does the Ordinance contravene the Code, it likewise runs counter to
the provisions of P.D. 499. As correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a commercial area. The decree
allowed the establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or yard, motor
repair shop, gasoline service station, light industry with any machinery or funeral
establishment. The rule is that for an ordinance to be valid and to have force and
effect, it must not only be within the powers of the council to enact but the same
must not be in conflict with or repugnant to the general law. As succinctly
illustrated in Solicitor General v. Metropolitan Manila Authority:
[121]

[122]

The requirement that the enactment must not violate existing law explains
itself. Local political subdivisions are able to legislate only by virtue of a valid
delegation of legislative power from the national legislature (except only that
the power to create their own sources of revenue and to levy taxes is conferred
by the Constitution itself). They are mere agents vested with what is called the
power of subordinate legislation. As delegates of the Congress, the local
government units cannot contravene but must obey at all times the will of their
principal. In the case before us, the enactment in question, which are merely
local in origin cannot prevail against the decree, which has the force and effect
of a statute.
[123]

Petitioners contend that the Ordinance enjoys the presumption of validity.


While this may be the rule, it has already been held that although the

presumption is always in favor of the validity or reasonableness of the ordinance,


such presumption must nevertheless be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature,
or unless it is against public policy or is unreasonable, oppressive, partial,
discriminating or in derogation of a common right.
[124]

Conclusion
All considered, the Ordinance invades fundamental personal and property
rights and impairs personal privileges. It is constitutionally infirm.
The Ordinance contravenes statutes; it is discriminatory and unreasonable in its
operation; it is not sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City Council under the
Code had no power to enact the Ordinance and is therefore ultra vires, null and
void.
Concededly, the challenged Ordinance was enacted with the best of motives
and shares the concern of the public for the cleansing of the Ermita-Malate area
of its social sins. Police power legislation of such character deserves the full
endorsement of the judiciary we reiterate our support for it. But inspite of its
virtuous aims, the enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the City Council,
cannot prohibit the operation of the enumerated establishments under Section 1
thereof or order their transfer or conversion without infringing the constitutional
guarantees of due process and equal protection of laws not even under the guise
of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the
Regional Trial Court declaring the Ordinance void is AFFIRMED. Costs against
petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, AustriaMartinez,
Corona,
Carpio-Morales,
Callejo,
Sr.,
Azcuna,
ChicoNazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.

[1]

Dated 11 January 1995; Rollo, pp. 6-73 with annexes.

[2]

Id. at 64-72.

[3]

The lower court declared the Ordinance to be null and void.

[4]

In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. Lim, etc, et al. before RTC,
Branch 55 of Manila, docketed as Civil Case No. 93-66551, Judge Hermogenes R. Liwag
declared the Ordinance void and unconstitutional. The defendants elevated the case to
the Court of Appeals which denied their petition on procedural grounds in its Decision
dated 21 May 2003. It appears that defendants Hon. Alfredo S. Lim and the City Council
of Manila did not elevate the case before the Court. Entry of Judgment of the CA Decision
was made on 22 April 2003.

[5]

Rollo, p. 37.

[6]

Id. at. 75; It now calls itself Hotel Victoria.

[7]

Id. at 35-47.

[8]

Id. at 46.

[9]

The principal authors of the Ordinance are: Hons. Bienvenido M. Abante, Jr.; Humberto B.
Basco; Nestor C. Ponce, Jr.; Ernesto A. Nieva; Francisco G. Varona, Jr.; Jhosep Y.
Lopez; Ma. Paz E. Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F.
Concepcion, Jr.; Ernesto V.P. Maceda, Jr.; Victoriano A. Melendez; Ma. Corazon R.
Caballes; Bernardito C. Ang; Roberto C. Ocampo; Rogelio B. dela Paz; Romeo G.
Rivera; Alexander S. Ricafort; Avelino S. Cailian; Bernardo D. Ragasa; Joey D. Hizon;
Leonardo L. Angat; and Jocelyn B. Dawis.

[10]

Rollo, p. 8.

[11]

RTC Records, pp. 10-11.

[12]

Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads, thus:

Section 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:
...
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
....
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses, and other similar establishments,
including tourist guides and transports; . . .
[13]

Presidential Decree No. 499; Dated 28 June 1974; Declaring Portions of the Ermita-Malate
Area as Commercial Zones with Certain Restrictions. It reads in full:

WHEREAS, the government is committed to the promotion and development of tourism in the
country, particularly in the City of Manila which is the hub of commercial and cultural
activities in Manila Metropolitan Area;
WHEREAS, certain portions of the districts of Ermita and Malate known as the Tourist Belt are
still classified as Class A Residential Zones and Class B Residential Zones where hotels
and other business establishments such as curio stores, souvenir shops, handicraft
display centers and the like are not allowed under the existing zoning plan in the City of
Manila;
WHEREAS, the presence of such establishments in the area would not only serve as an
attraction for tourists but are dollar earning enterprises as well, which tourist areas all
over the world cannot do without;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me under the Constitution as Commander-in-Chief of all the Armed
Forces of the Philippines and pursuant to Proclamation No. 1081, dated September 21,
1972, and General Order No. 1, dated September 22, 1972, as amended, do hereby
order and decree the classification as a Commercial Zone of that portion of the ErmitaMalate area bounded by Teodoro M. Kalaw, Sr. Street in the north; Taft Avenue in the
east; Vito Cruz Street in the south and Roxas Boulevard in the west. PROVIDED,
HOWEVER, That no permit shall be granted for the establishment of any new warehouse
or open storage depot, dump or yard, motor repair shop, gasoline service station, light
industry with any machinery or funeral establishment in these areas, and PROVIDED,
FURTHER, That for purposes of realty tax assessment on properties situated therein,
lands and buildings used exclusively for residential purposes by the owners themselves
shall remain assessed as residential properties.
All laws, ordinances, orders, rules and regulations which are inconsistent with this Decree are
hereby repealed or modified accordingly.
This Decree shall take effect immediately.
Done in the City of Manila this 28 th day of June in the year of Our Lord, nineteen hundred and
seventy-four.
[14]

RTC Records, pp. 11-13.

[15]

Id. at 158-171.

[16]

Id. at 160.

[17]

41 Phil. 103 (1920); see also Samson v. Mayor of Bacolod City, G.R. No. L-28745, 23 October
1974, 60 SCRA 267.

[18]

RTC Records, p. 161.

[19]

Approved on 18 June 1949.

[20]

RTC Records, p. 160.

[21]

Supra note 18.

[22]

Id. at 164.

[23]

Ibid.

[24]

Id. at 165-169.

[25]

Id. at 84.

[26]

Id. at 453.

[27]

Rollo, pp. 6 and 72.

[28]

Id. at 6.

[29]

Dated 12 December 1994; Id. at 73.

[30]

Id. at 2.

[31]

Supra note 13.

[32]

Rollo, p. 13.

[33]

Id. at 190-201.

[34]

Id. at 16, 194, 198.

[35]

Id. at 19, 22, 25-26, 199.

[36]

Id. at 150-180.

[37]

Tatel v. Municipality of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, 161; Solicitor
General v. Metropolitan Manila Authority, G.R. No. 102782, 11 December 1991, 204
SCRA 837, 845; Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994,
234 SCRA 255, 268-267.

[38]

See ART. 7, par. (3) of the Civil Code which reads, thus:
...

Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.
[39]

Magtajas v. Pryce Properties Corp, Inc., G.R. No. 111097, 20 July 1994, 234 SCRA 255, 270271.

[40]

Id. at 273.

[41]

Acebedo Optical Company, Inc. v. Court of Appeals, 385 Phil. 956, 968-969 (2000).

[42]

Metropolitan Manila Devt. Authority v. Bel-Air Village Asso., 385 Phil. 586, 603
(2000), citing Sections 468 (a), 458 (a), and 447 (a), Book III, Local Government Code of
1991.

[43]

16 C.J.S., pp. 562-565.

[44]

Art. II, DECLARATION OF PRINCIPLES AND STATE POLICIES, 1987 CONST.

[45]

Ibid.

[46]

Art. III, BILL OF RIGHTS, 1987 CONST.

[47]

Ibid.

[48]

Id. at Sec. 9; See also CRUZ, ISAGANI A., CONSTITUTIONAL LAW 97 (1998).

[49]

Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 Phil.
849, 860 (1967).

[50]

See In re Lutker, Okl. Cr., 274 P. 2d 786, 789, 790.

[51]

Supra note 43 at 1150-1151.

[52]

See Smith, Bell & Co. v. Natividad, 40 Phil. 136, 145 (1919).

[53]

CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523
(2002).

[54]

Id. at 523-524.

[55]

See County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).

[56]

CHEMERINSKY, Supra note 53 at 524.

[57]

Lim v. Court of Appeals, 435 Phil. 857, 868 (2002); This is a related case involving the same
Ordinance challenged in this case. The Court denied the petition questioning the writ of
prohibitory preliminary injunction issued by the RTC, enjoining the closure of a certain
establishment pursuant to the Ordinance.

[58]

Homeowners Asso. of the Phil., Inc. v. Municipal Board of the City of Manila, 133 Phil. 903, 907
(1968).

[59]

CRUZ, ISAGANI A., CONSTITUTIONAL LAW 104 (1998).

[60]

See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila, 21 Phil. 486 (1912);
Case v. Board of Health, 24 Phil. 256 (1913).

[61]

Balacuit v. CFI of Agusan del Norte, No. L-38429, 30 June 1988, 163 SCRA 182, 191-193.

[62]

CRUZ, Supra note 59 at 56.

[63]

Ermita-Malate Hotel and Motel Operators Assoc. Inc. v. City Mayor of Manila, supra note 49.

[64]

Id. at 858-859.

[65]

Section 458 (a) 1 (v), the Code.

[66]

Catechism of the Catholic Church, Definitive Edition, p. 101; ECCE and Word & Life
Publications, Don Bosco Compound, Makati.

[67]

Lim v. Court of Appeals, supra note 57 at 867.

[68]

Rubi v. Provincial Board 39 Phil. 660 (1919), as cited in Morfe v. Mutuc, 130 Phil. 415 (1968).

[69]

Morfe v. Mutuc, 130 Phil. 415, 440 (1968).

[70]

408 U.S. 572.

[71]

See Lawrence v. Texas, 539 U.S. 558 (2003).

[72]

Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23 November 2004, J.
Tinga, ponente.

[73]

Lawrence v. Texas, supra note 70.

[74]

Morfe v. Mutuc, supra note 68 at 442.

[75]

Id. at 442-443, citing Laski, Liberty in the Modern State, 44 (1944).

[76]

Id. at 444-445, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law. Rev. 219,
229 (1965).

[77]

People v. Fajardo, et al., 104 Phil. 443, 447 (1958).

[78]

Ibid. citing Arverne Bay Const. Co. v. Thatcher (N.Y.) 117 ALR. 1110, 1116.

[79]

CHEMERINSKY, Supra note 53 at 616.

[80]

Id. at 617.

[81]

260 U.S. 393, 415 (1922).

[82]

Id. at 413-415.

[83]

See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

[84]

CHEMERINSKY , supra note 53 at 623-626.

[85]

See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

[86]

Ibid.

[87]

CHEMERINSKY, supra note 53 at 166.

[88]

Supra note 82.

[89]

CRUZ, Supra note 59 at 38.

[90]

People v. Fajardo, supra note 76 at 443, 448 citing Tews v. Woolhiser (1933) 352 I11. 212, 185
N.E. 827.

[91]

Id. at 446-447.

[92]

Id. at 447, citing Schloss Poster Adv. Co., Inc. v. City of Rock Hill, et al., 2 SE (2d), pp. 394-395;
People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195.

[93]

402 U.S. 611 (1971).

[94]

No. L-44143, 31 August 1988, 165 SCRA 186, 195.

[95]

493 U.S. 215 (1990).

[96]

Supra note 49.

[97]

De la Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490, 503 (1983).

[98]

See Ichong v. Hernandez, 101 Phil. 1155 (1957).

[99]

16B Am Jur 2d 779 299 citing State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.
Ct. 232, 83 L. Ed. 208 (1938), rehg denied, 305 U.S. 676, 59 S. Ct. 356, 83 L. Ed. 437
(1939) and mandate conformed to, 344 Mo. 1238, 131 S.W. 2d 217 (1939).

[100]

16B Am Jur 2d 779 299 citing Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d
855, 109 Ed. Law Rep. 539, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec.
(CCH) 44013 (1996); Walker v. Board of Supervisors of Monroe County, 224 Miss. 801,
81 So. 2d 225 (1955), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955);
Preisler v. Calcaterra, 362 Mo. 662, 243 S.W. 2d 62 (1951).

[101]

Supra note 52 at 145.

[102]

Nuez v. Sandiganbayan, 197 Phil. 407 (1982).

[103]

Cruz, supra note 59 at 125.

[104]

See People v. Cayat, 68 Phil. 12 (1939).

[105]

See Craig v. Boren, 429 U.S. 190 (1976).

[106]

Supra note 17.

[107]

Id. at 108 (1920).

[108]

81 Phil. 33 (1948).

[109]

Id. at 38.

[110]

Rollo, p. 19.

[111]

RTC Records, p. 409; The Decision of the Regional Trial Court of Manila, Branch 55 in the
case of Cotton Club Corporation, Inc. v. Hon. Alfredo S. Lim, etc., et al., Civil Case No.
93-66551; Dated 28 July 1993; Penned by Judge Hermogenes R. Liwag; Citing Shaw,
Harry, Punctuate it Right! Everday Handbooks 125-126.

[112]

Id. at 408.

[113]

City of Ozamis v. Lumapas, No. L-30727, 15 July 1975, 65 SCRA 33, 42.

[114]

FRANCISCO, VICENTE J., STATUTORY CONSTRUCTION, Second Edition 172


(1959); See Pepsi-Cola Bottling Company of the Philippines, Inc. v. Municipality of
Tanauan, Leyte, et al., 161 Phil. 591, 605 (1976).

[115]

Supra note 107 at 33.

[116]

AGPALO, RUBEN F., STATUTORY CONSTRUCTION 296 (1986).

[117]

FRANCISCO, Supra note 113 at 271.

[118]

CRAWFORD,
EARL
T.,
THE
CONSTRUCTION
OF
STATUTES 196-197
(1940); See Mecano v. Commission on Audit, G.R. No. 103982, 11 December 1992, 216
SCRA 500, 505.

[119]

See Estate of Gregoria Francisco v. Court of Appeals, G.R. No. 95279, 25 July 1991, 199
SCRA 595, 601.

[120]

FRANCISCO, Supra note 113 at 178-179; See King, et al. v. Hernaez, etc., et al., 114 Phil.
730, 739 (1962).

[121]

Chua Lao, etc., et al. v. Raymundo, etc., et al., 104 Phil. 302, 307 (1958).

[122]

G.R. No. 102782, 11 December 1991, 204 SCRA 837.

[123]

Id. at 847.

[124]

Balacuit v. CFI of Agusan del Norte, supra note 61 at 198-199.

EN BANC
ATTY. ROMEO L. ERECE, G.R. No. 166809
Petitioner,

Present:
PUNO, C.J.,
- versus - QUISUMBING,
YNARES-SANTIAGO,
CARPIO,*
AUSTRIA-MARTINEZ,
LYN B. MACALINGAY, JOCELYN CORONA,
BASTIAN, LYMAN B. SALVADOR, CARPIO MORALES,
BIENVENIDO L. REANO, BRIGIDA AZCUNA,
CECILIA R. ABRATIQUE, JEAN TINGA,
CORTEZ-MARZAN, FRANCISCO CHICO-NAZARIO,
M. BILOG, ROSA P. ESPIRITU, VELASCO, JR.,
ROLANDO EBREO, YANIE A. NACHURA,
PITLONGAY, and VIRGILIO REYES,
MAGPOC, LEONARDO-DE CASTRO, and
Respondents. BRION, JJ.
Promulgated:
April 22, 2008
X -------------------------------------------------------------------------------------- X

DECISION
AZCUNA, J.:
This is a petition for review on certiorari[1] of the Decision of the
Court of Appeals (CA) promulgated on January 7, 2005 affirming the
Decision of the Civil Service Commission (CSC) which found petitioner
Atty. Romeo L. Erece guilty of dishonesty and conduct prejudicial to the
best interest of the service.
The facts are as follows:
Petitioner is the Regional Director of the Commission on Human
Rights (CHR) Region I, whose office is located in San Fernando City, La
Union. Respondent employees of the CHR Region I filed an AffidavitComplaint dated October 2, 1998 against petitioner alleging that he denied
them the use of the office vehicle assigned to petitioner, that petitioner still

claimed transportation allowance even if he was using the said vehicle, and
that he certified that he did not use any government vehicle, when in fact he
did, in order to collect transportation allowance.
The Affidavit-Complaint reads:
xxx
4. That on September 10, 1998, we, Atty. Lynn Macalingay and
Mr. Lyman Salvador were denied the use of the office vehicle as
evidenced by the hereto attached copy of our denied Itinerary of Travel
marked as Annex B;
5.
That on August 5, 1998, I, Brigida Abratique requested for
the use of the government vehicle but the same was denied by Atty. Erece
for the reason that we would be using the same to Teachers Camp as
evidenced by a copy of the denied trip ticket with the marginal notes of
Atty. Erece hereto attached as Annex C;
6.
That on May 29, 1998, the request of Brigida Cecilia
Abratique and Francisco Bilog to use the vehicle within the City for field
work purposes was again denied by Atty. Erece as he will accordingly use
the same;
7.
That on April 20, 1998, a proposed trip was likewise
postponed by Atty. Erece on the ground that he will be using the vehicle as
evidenced by a copy of the proposed Itinerary of Travel with marginal
note of Atty. Erece xxx;
8.
That on April, 1997, I, Atty. Jocelyn Bastian requested for
the use of the vehicle as I need[ed] to go to the Benguet Provincial Jail but
I was instructed to commute because he will use the vehicle. To my
dismay, I found him still in the office when I returned from the Provincial
Jail;
9.
That such denials of the use of the vehicle are not isolated
cases but were just a few of the numerous instances of conflicts of
schedules regarding the use of the government vehicle and where we
found ourselves always at the losing end because we are the subordinate
employees;
xxx
13. That Atty. Erece regularly receives and liquidates his
Representation and Transportation Allowances (RATA) which at present is
in the amount of FOUR THOUSAND PESOS (P4,000.00), the payroll of
such and its liquidation could be made available upon request by an
authority to the Resident Auditor but his liquidations for the month of
April 1998 and September 1998 [are] hereto attached xxx;
14. That despite regular receipt of his RATA, Atty. Erece still
prioritizes himself in the use of the office vehicle to the detriment of the
public service;

15. That to compound things, he certifies in his monthly


liquidation of his RATA that HE DID NOT USE ANY GOVERNMENT
VEHICLE FOR THE SAID MONTH xxx which is a big lie because as
already stated, he is the regular user of the government vehicle issued to
CHR, Region I;
16. That I, Rolando C. Ebreo, the disbursing officer of the
Regional Field Office hereby attest to the fact that no deductions in the
RATA of Atty. Romeo L. Erece was ever done in connection with his
regular use of the government vehicle x x x.[2]

The CSC-Cordillera Administrative Region issued an Order


dated October 9, 1998, directing petitioner to comment on the complaint.
In compliance, petitioner countered, thus:
xxx
4. In relation to paragraphs 2-D, 2-E and 2-G above cited, it is
among the duties as per management supervisory function of the Regional
HR Director to approve use or non-use of the official vehicle of the
Region as it was memorandum receipted to him and the non-approval of
the use of the same if it is not arbitrary and for justifiable reasons; said
function of approval and disapproval rests on the Regional Human Rights
Director and that function is not merely ministerial;
5. That I have issued a guideline that the official vehicle will not be
used for the Mountain Provinces and Halsema Highway/Mountain Trail
because of the poor road condition and to prevent breakdown and early
deterioration of same xxx;
6. That Atty. Lynn B. Macalingay, one of the complainants had
gone to Mt. Province to attend the Provincial Peace and Order Council
meetings, conduct jail visitations and follow-up cases on many occasions
using the regular bus trips in the spirit of the policy as mentioned in
paragraph 4 xxx;
7. That all employees had used the vehicle on official business
without exception, all complainants included xxx;
8. On September 10, 1998, Atty. Lynn Macalingay and Lyman
Salvador had the use of the vehicle disapproved for the reasons
conforming to paragraph 4 xxx;
9. On August 5, 1998, Atty. Erece disapproved the use of vehicle
for use of Brigida Abratique because:
a) The vehicle was available since July 30, 1998 for
use in Happy Hallow but not utilized earlier xxx;
b) On August 6, 1998, a DECS-CHR Seminar on Use
Human Rights Exemplar was held at the Teachers Camp
Baguio City and the vehicle was used to transport HR
materials, overhead projector and for the overall use of the
seminar upon the request of the Public Information and

Education Office, Central Office, Commission on Human


Rights through Susan Nuguid of CHR, Manila;
xxx
d)
That Mrs. Abratique and Co. were asked to
explain the unreasonable delay to attend to the case of Cherry
Esteban which was subject of the disapproved travel;
10. On April 20, 1998, the itinerary of travel of Lyman Salvador
was RESCHEDULED from April 22 & 23, 1998 to April 23 & 24, 1998
as the vehicle was used by Atty. Erece on an important travel to Manila
upon order of no less than the Honorable Chairperson, Aurora NavaretteRecia of Commission on Human Rights xxx;
xxx
12.
As to the use of the vehicle by the Regional HR Director,
same shall be subject to the allowance/disallowance of the COA Resident
Auditor, likewise the Regional HR Director in all his travels outside
Baguio City, he does not claim bus and taxi fares per certification of
Danilo Balino, the Administrative Officer Designate and Mr. Rolando
Ebreo, the Cash Disbursing Officer, Annex Z;
13.
In many cases, Atty. Romeo L. Erece has to maintain the
vehicle including car washing thereof, garage parking at his residence to
maintain and upkeep the vehicle and same is still in premium condition to
the satisfaction of the office at no extra cost to the Commission;
xxx
15.
In support thereof, we move to dismiss this case as pure
question on supervisory and management prerogative, which is reserved
for the Office Head and a harassment move by disgruntled employees who
are counter-charged hereof;
16.
Annexes E and F of the complaint [are] misplaced and
misleading because a clear and cognate reading of same does not reflect
that I checked/marked the use of government vehicle in the certification
and as such no dishonesty is involved; the documents speak for
themselves. x x x Annex E is for the month of April, 1998 where the check
marks are clear. On Annex F of the complaint, no reference is made as to
the fact that I did not use the government vehicle, if so, no allegation as to
when I did use same for my personal use.[3]

After a fact-finding investigation, the CSC Proper in CSC Resolution


No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and
Grave Misconduct for using a government vehicle in spite of his receipt of
the monthly transportation allowance and for certifying that he did not use
any government vehicle, when in fact, he did, in order to receive the
transportation allowance.

Pertinent portions of the formal charge read:


1. That despite the regular receipt of Erece of his monthly
Representation and Transportation Allowance (RATA) in the amount
of P4,000.00, he still prioritizes himself in the use of the office vehicle
(Tamaraw FX) in spite of the directive from the Central Office that he
cannot use the service vehicle for official purposes and at the same time
receive his transportation allowance;
2. That Erece did not comply with the directive of the Central
Office addressed to all Regional Human Rights Directors, as follows: to
regularize your receipt of the transportation allowance component of the
RATA to which you are entitled monthly, you are hereby directed to
immediately transfer to any of your staff, preferably one of your lawyers,
the memorandum receipt of the vehicle(s) now still in your name;
3. That he certified in his monthly liquidation of his RATA that he
did not use any government vehicle for the corresponding month, which is
not true because he is the regular user of the government vehicle issued to
CHR-Region I.
The foregoing facts and circumstances indicate that government
service has been prejudiced by the acts of Erece.
WHEREFORE, Romeo L. Erece is hereby formally charged with
Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days
from receipt hereof to submit his Answer under oath and affidavits of his
witnesses, if any, to the Civil Service Commission-Cordillera
Administrative Region (CSC-CAR). On his Answer, he should indicate
whether he elects a formal investigation or waives his right thereto. Any
Motion to Dismiss, request for clarification or Bills of Particulars shall not
be entertained by the Commission. Any of these pleadings interposed by
the respondent shall be considered as an Answer and shall be evaluated as
such. Likewise, he is advised of his right to the assistance of counsel of his
choice.[4]

After a formal investigation of the case, the CSC issued Resolution


No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty
and conduct prejudicial to the best interest of the service and penalizing him
with dismissal from the service.
Petitioner filed a petition for review of the CSC Resolution with the
CA.
In the Decision promulgated on January 7, 2005, the CA upheld the
CSC Resolution, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the petition
is DENIED and the assailed Resolutions of the Civil Service Commission
are hereby AFFIRMED.[5]

Hence, this petition.


Petitioner raises these issues:
1.

Whether or not the Court of Appeals erred in ruling that


petitioner was not denied due process despite the admitted facts
that respondents failed to identify and testify on their AffidavitComplaint and that petitioner was denied of his right to crossexamine respondents on their Affidavit-Complaint.

2.

Whether or not the Court of Appeals was correct in adopting in


toto the conclusions of the CSC although they were based on
mere assumptions.

Petitioner contends that he was denied due process as he was not


afforded the right to cross-examine his accusers and their witnesses. He
stated that at his instance, in order to prevent delay in the disposition of the
case, he was allowed to present evidence first to support the allegations in
his Counter-Affidavit. After he rested his case, respondents did not present
their evidence, but moved to submit their position paper and formal offer of
evidence, which motion was granted by the CSC over his (petitioners)
objection.Respondents then submitted their Position Paper and Formal Offer
of Exhibits.
Petitioner submits that although he was allowed to present evidence
first, it should not be construed as a waiver of his right to cross-examine the
complainants. Although the order of presentation of evidence was not in
conformity with the procedure, still petitioner should not be deemed to have
lost his right to cross-examine his accusers and their witnesses. This may be
allowed only if he expressly waived said right.
The Court agrees with the CA that petitioner was not denied due
process when he failed to cross-examine the complainants and their
witnesses since he was given the opportunity to be heard and present his
evidence. In administrative proceedings, the essence of due process is
simply the opportunity to explain ones side.[6]
Velez v. De Vera[7] held:

Due process of law in administrative cases is not identical with


judicial process for a trial in court is not always essential to due
process. While a day in court is a matter of right in judicial proceedings, it
is otherwise in administrative proceedings since they rest upon different
principles. The due process clause guarantees no particular form of
procedure and its requirements are not technical. Thus, in certain
proceedings of administrative character, the right to a notice or hearing are
not essential to due process of law. The constitutional requirement of due
process is met by a fair hearing before a regularly established
administrative agency or tribunal. It is not essential that hearings be had
before the making of a determination if thereafter, there is available trial
and tribunal before which all objections and defenses to the making of
such determination may be raised and considered. One adequate hearing is
all that due process requires. . . .
The right to cross-examine is not an indispensable aspect of
due process. Nor is an actual hearing always essential. . . . [8]

Next, petitioner contends that the CA erred in adopting in toto the


conclusions of the CSC.
Petitioner contends that the conclusion of the CSC proceeded from the
premise that the petitioner was using the subject vehicle as his service
vehicle, which he disputes, because he did not use the vehicle regularly. The
evidence showed that the service vehicle was being used by the employees
of the regional office for official purposes. He argues that although the
service vehicle is still in his name, it should not be concluded that it is
assigned to him as his service vehicle, thus disqualifying him from receiving
transportation allowance.
The Court is not persuaded. The pertinent conclusion of the CSC
referred to by petitioner reads:
At the outset, it must be stated that the entitlement to transportation
allowance by certain officials and employees pursuant to RA 6688
presupposes that they are not assigned government vehicles. This was
clarified by the Supreme Court in the case of Aida Domingo vs. COA,
G.R. No. 112371, October 7, 1998, where it ruled, as follows:
The provision of law in point is found in Section 28
of Republic Act 6688, otherwise known as the General
Appropriations Act of 1989, to wit:
Sec. 28. Representation and Transportation
Allowances. ... The transportation allowance herein
authorized shall not be granted to officials who are
assigned a government vehicle or use government motor
transportation, except as may be approved by the President
of the Philippines. Unless otherwise provided by law, no
amount appropriated in this Act shall be used to pay for
representation and/or transportation allowances, whether

commutable or reimbursable, which exceed the rates


authorized under this Section. Previous administrative
authorization not consistent with the rates and conditions
herein specified shall no longer be valid and payment shall
not be allowed.
xxx
In the case of Bustamante vs. Commission on Audit,
216 SCRA 134, decided by this Court on November 27,
1992, COA also disallowed the claim for transportation
allowance of the legal counsel of National Power
Corporation because he was already issued a government
vehicle. Involving the circular aforementioned and almost
the same facts as in this case, it was therein held that COA
Circular No. 75-6 is categorical in prohibiting the use of
government vehicles by officials receiving transportation
allowance and in stressing that the use of government
motor vehicle and claim for transportation allowance are
mutually exclusive and incompatible.
The issue need no longer be belabored for no less
than this Court ruled in the aforesaid case that a
government official, to whom a motor vehicle has been
assigned, cannot, at the same time, claim transportation
allowance. (Underscoring supplied)
It is clear from the records that Director Edmundo S. Ancog, CHRCentral office (Field Operations office), issued a Memorandum dated
February 27, 1998, addressed to all CHR Regional Directors in respect to
Transportation Allowance. The Memorandum states that transportation
allowance shall not be granted to Regional Directors whenever a
government vehicle or use of government motor transportation is already
assigned to them. It further emphasized that should they want to avail
regularization of their RATA, the Regional Directors must immediately
transfer the vehicle to any of their staff/lawyer.
Records show that Erece was issued a government vehicle
since August 10, 1997 and he did not transfer the vehicle to any of his
staff. Notwithstanding this fact and the said memorandum, he received
transportation allowance particularly for the months of April and
September 1998, as reflected in the Certification/s signed by him. This
clearly resulted in undue prejudice to the best interest of the service.
The foregoing facts logically lead to the conclusion that the act of
Erece in certifying that he has not used any government vehicle and
consequently collecting Transportation Allowance despite the fact that a
government vehicle was assigned to him constitutes the offenses of
Dishonesty and Conduct Prejudicial to the Best Interest of the Service.[9]

The above conclusion,as well as the Memorandum dated February 27,


1998 issued by Director Ancog to the CHR Regional Directors, are
both very clear. Once a vehicle is assigned to a regional director, like

petitioner, he is no longer entitled to transportation allowance unless he


assigns the vehicle to another staff/lawyer. Since petitioner did not assign the
subject vehicle assigned to him to someone else, he is not entitled to
transportation allowance.
Contrary to the argument of petitioner, there is no qualification that
the assigned vehicle should be for the exclusive use of the service vehicle of
the regional director alone to disqualify him from receiving transportation
allowance.
Since the records show that petitioner collected transportation
allowance even if a government vehicle had been assigned to him, the CA
did not err in sustaining the decision of the CSC finding petitioner guilty of
dishonesty and conduct prejudicial to the best interest of the service and
penalizing him with dismissal from the service.
WHEREFORE, the petition is denied. The Decision of the Court of
Appeals promulgated on January 7, 2005 is AFFIRMED.
No costs.
SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO


Associate Justice Associate Justice

(On Leave)

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES


Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO


Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA


Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO


Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

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

REYNATO S. PUNO
Chief Justice

On Leave.
Under Rule 45 of the Rules of Court.
[2]
CSC Resolution, Rollo, pp. 36-37.
[3]
Id. at 38-39.
[4]
Id. at 35-36.
[5]
Id. at 34.
[6]
Velez v. De Vera, A.C. No. 6697, July 25, 2006, 496 SCRA 345.
[7]
Id. at 387-388.
[8]
Emphasis supplied.
[9]
Id. at 41-43.
[1]

EN BANC

IN THE MATTER OF THE G.R. No. 174340


PETITION FOR ISSUANCE OF
WRIT OF HABEAS CORPUS OF
CAMILO L. SABIO,
Petitioner,
J. ERMIN ERNEST LOUIE R.
MIGUEL,
Petitioner-Relator,
- versus HONORABLE
SENATOR
RICHARD GORDON, in his
capacity as Chairman, and the
HONORABLE MEMBERS OF
THE
COMMITTEE
ON
GOVERNMENT
CORPORATIONS AND PUBLIC
ENTERPRISES
and
THE
COMMITTEE
ON
PUBLIC
SERVICES
of
the
Senate,
HONORABLE SENATOR JUAN
PONCE-ENRILE, in his official
capacity
as
Member,
HONORABLE
MANUEL
VILLAR,
Senate
President,
SENATE SERGEANT-AT-ARMS,
and the SENATE OF THE G.R. No. 174318
PHILIPPINES,
Respondents.
x -----------------------------------------------x
PRESIDENTIAL COMMISSION
ON
GOOD
GOVERNMENT
(PCGG) and CAMILO L. SABIO,
Chairman, NARCISO S. NARIO,
RICARDO
M.
ABCEDE,
TERESO
L.
JAVIER
and
NICASIO
A.
CONTI,
Commissioners,
MANUEL

ANDAL
and
JULIO
JALANDONI, PCGG nominees
toPhilcomsat Holdings
Corporation,
Petitioners,
- versus RICHARD GORDON, in his
capacity as Chairman, and
MEMBERS
OF
THE
COMMITTEE
ON
GOVERNMENT
CORPORATIONS AND PUBLIC
ENTERPRISES, MEMBERS OF G.R. No. 174177
THE COMMITTEE ON PUBLIC
SERVICES, SENATOR JUAN
Present:
PONCE-ENRILE,
in
his
PANGANIBAN, C.J.
capacity as member of both
PUNO,
said
Committees,
MANUEL
VILLAR,
Senate
President,
QUISUMBING,
THE SENATE SERGEANT-ATARMS, and SENATE OF THE
YNARES-SANTIAGO,
PHILIPPINES,
SANDOVAL-GUTIERREZ,
Respondents.
CARPIO,
x-------------------------------------------------

AUSTRIA-MARTINEZ,
CORONA,
x
CARPIO MORALES,
CALLEJO, SR.,
PHILCOMSAT
HOLDINGS
AZCUNA,
CORPORATIONS, PHILIP G. TINGA,
NAZARIO,
GARCIA, and
BRODETT, LUIS K. LOKIN, JR.,
VELASCO,JJ.
ROBERTO

V.

SAN

JOSE,

DELFIN P. ANGCAO, ROBERTO Promulgated:


L.

ABAD,

ALMA

KRISTINA October 17, 2006

ALOBBA, and JOHNNY TAN,


Petitioners,

- versus -

SENATE
COMMITTEE
ON
GOVERNMENT
CORPORATIONS and PUBLIC
ENTERPRISES, its MEMBERS
and
CHAIRMAN,
the
HONORABLE
SENATOR
RICHARD
GORDON
and
SENATE
COMMITTEE
ON
PUBLIC
SERVICES,
its
Members and Chairman, the
HONORABLE
SENATOR
JOKER P. ARROYO,
Respondents.

x-------------------------------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

Two decades ago, on February 28, 1986, former


President Corazon C.

Aquino installed her regime by issuing Executive Order


(E.O.) No. 1,[1] creating the Presidential Commission on
Good Government (PCGG). She entrusted upon this
Commission the herculean task of recovering the ill-gotten
wealth accumulated by the deposed President Ferdinand E.
Marcos, his family, relatives, subordinates and close
associates.[2] Section 4 (b) of E.O. No. 1 provides that: No
member or staff of the Commission shall be required
to testify or produce evidence in any judicial,
legislative or administrative proceeding concerning
matters within its official cognizance. Apparently, the

purpose is to ensure PCGGs unhampered performance of its


task.[3]
Today, the constitutionality of Section 4(b) is being
questioned on the ground that it tramples upon the Senates
power to conduct legislative inquiry under Article VI,
Section 21 of the 1987 Constitution, which reads:
The Senate or the House of Representatives
or any of its respective committees may conduct
inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights
of persons appearing in or affected by such
inquiries shall be respected.
The facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago
introduced Philippine Senate Resolution No. 455 (Senate
Res. No. 455),[4] directing an inquiry in aid of legislation on
the anomalous losses incurred by the Philippines Overseas
Telecommunications
Corporation
(POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the
alleged improprieties in their operations by their respective
Board of Directors.
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the
representation and entertainment expense of the
PHC skyrocketed to P4.3 million, as compared to
the previous years mere P106 thousand;
WHEREAS,
some
board
members
established wholly owned PHC subsidiary called
Telecommunications Center, Inc. (TCI), where
PHC funds are allegedly siphoned; in 18 months,
over P73 million had been allegedly advanced to
TCI without any accountability report given to
PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12
February 2002 issue reported that the executive
committee
of Philcomsat has
precipitately
released P265 million and granted P125 million
loan to a relative of an executive committee

member; to date there have been no payments


given, subjecting the company to an estimated
interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to
protect the interest of the Republic of the
Philippines in the PHC, PHILCOMSAT, and POTC
from any anomalous transaction, and to conserve
or salvage any remaining value of the
governments equity position in these corporations
from any abuses of power done by their
respective board of directors;
WHEREFORE, be it resolved that the
proper Senate Committee shall conduct an
inquiry in aid of legislation, on the
anomalous losses incurred by the Philippine
Overseas Telecommunications Corporation
(POTC), Philippine Communications Satellite
Corporation
(PHILCOMSAT),
and Philcomsat Holdings Corporations (PHC)
due to the alleged improprieties in the
operations by their respective board of
directors.
Adopted.
(Sgd) MIRIAM
DEFENSOR SANTIAGO

On the same date, February 20, 2006, Senate Res. No. 455
was submitted to the Senate and referred to the Committee
on
Accountability
of
Public
Officers
and
Investigations andCommittee on Public Services. However,
on March 28, 2006, upon motion of Senator Francis
N. Pangilinan, it was transferred to the Committee on
Government Corporations and Public Enterprises.[5]
On May 8, 2006, Chief of Staff Rio C. Inocencio, under
the authority of Senator Richard J. Gordon, wrote
Chairman Camilo L. Sabio of the PCGG, one of the herein
petitioners, inviting him to be one of the resource persons in
the public meeting jointly conducted by the Committee on
Government
Corporations
and
Public
Enterprises andCommittee on Public Services. The purpose

of the public meeting was to deliberate on Senate Res. No.


455.[6]
On May
9,
2006,
Chairman Sabio declined
the
[7]
invitation because of prior commitment. At the same
time, he invoked Section 4(b) of E.O. No. 1 earlier
quoted.
On August 10,
2006,
Senator Gordon issued
[8]
a Subpoena
Ad Testificandum, approved
by
Senate
President Manuel Villar, requiring Chairman Sabio and
PCGG
Commissioners Ricardo Abcede, Nicasio Conti, Tereso Ja
vier and Narciso Nario to appear in the public hearing
scheduled on August 23, 2006 and testify on what they
know relative to the matters specified in Senate Res. No.
455. Similar subpoenae were issued against the directors
and
officers
of Philcomsat Holdings
Corporation,
namely: Benito
V.
Araneta,
Philip
J. Brodett,
Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis
K. Lokin,
Jr.,
Julio
J. Jalandoni,
Roberto
V.
San
Jose, Delfin P. Angcao, Alma KristinaAlloba and Johnny Tan.
[9]

Again, Chairman Sabio refused to appear. In his letter


to Senator Gordon dated August 18, 2006, he reiterated his
earlier position, invoking Section 4(b) of E.O. No. 1. On the
other
hand,
the
directors
and
officers
of Philcomsat Holdings Corporation relied on the position
paper they previously filed, which raised issues on the
propriety of legislative inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela,
under the authority of Senator Gordon, sent another
notice[10] to Chairman Sabio requiring him to appear and
testify on the same subject matter set on September 6,
2006. The notice was issued under the same authority of
the Subpoena Ad Testificandum previously served upon
(him) last 16 August 2006.
Once more, Chairman Sabio did not comply with the
notice. He sent a letter[11] dated September 4, 2006 to

Senator Gordon reiterating his reason for declining to


appear in the public hearing.
This prompted Senator Gordon to issue an Order
dated September 7, 2006 requiring Chairman Sabio and
Commissioners Abcede, Conti, Javier and Nario to show
cause why they should not be cited in contempt of the
Senate. On September 11, 2006, they submitted to the
Senate their Compliance and Explanation,[12] which partly
reads:
Doubtless, there are laudable intentions
of the subject inquiry in aid of legislation. But
the rule of law requires that even the best
intentions must be carried out within the
parameters of the Constitution and the law. Verily,
laudable purposes must be carried out by legal
methods. (Brillantes, Jr., et al. v. Commission on
Elections, En Banc [G.R. No. 163193, June 15,
2004])
On this score, Section 4(b) of E.O. No. 1
should not be ignored as it explicitly provides:
No member or staff of the
Commission shall be required to
testify or produce evidence in any
judicial legislative or administrative
proceeding
concerning
matters
within its official cognizance.
With all due respect, Section 4(b) of E.O. No.
1 constitutes a limitation on the power of
legislative inquiry, and a recognition by the State
of the need to provide protection to the PCGG in
order to ensure the unhampered performance of
its duties under its charter. E.O. No. 1 is a law,
Section 4(b) of which had not been amended,
repealed or revised in any way.
To say the least, it would require both
Houses of Congress and Presidential fiat to
amend
or
repeal
the
provision
in
controversy. Until then, it stands to be respected
as part of the legal system in this jurisdiction. (As
held in People v. Veneracion, G.R. Nos. 119987-

88, October 12, 1995: Obedience to the rule of


law forms the bedrock of our system of justice. If
judges, under the guise of religious or political
beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law
to exercise the duties of their office, then law
becomes meaningless. A government of laws, not
of men excludes the exercise of broad
discretionary powers by those acting under its
authority. Under this system, judges are guided
by the Rule of Law, and ought to protect and
enforce it without fear or favor, 4 [Act
of Athens (1955)]
resist
encroachments
by
governments, political parties, or even the
interference of their own personal beliefs.)
xxxxxx
Relevantly, Chairman Sabios letter to Sen.
Gordon dated August 19, 2006 pointed out that
the anomalous transactions referred to in the P.S.
Resolution No. 455 are subject of pending cases
before the regular courts, the Sandiganbayan and
the
Supreme
Court (Pending
cases
include: a. Samuel Divina v. Manuel Nieto, Jr., et
al.,
CA-G.R.
No.
89102; b. Philippine
Communications Satellite Corporation v. Manuel
Nieto, et al.; c. Philippine Communications
Satellite Corporation v. Manuel D. Andal, Civil
Case No. 06-095, RTC, Branch 61, Makati City;
d.Philippine Communications
Satellite
Corporation
v.
PHILCOMSAT
Holdings
Corporation, et al., Civil Case No. 04-1049) for
which reason they may not be able to testify
thereon under the principle of sub judice. The
laudable objectives of the PCGGs functions,
recognized in several cases decided by the
Supreme Court, of the PCGG will be put to naught
if its recovery efforts will be unduly impeded by a
legislative investigation of cases that are already
pending before the Sandiganbayan and trial
courts.
In Bengzon v.
Senate
Blue
Ribbon
Committee, (203 SCRA 767, 784 [1991]) the
Honorable Supreme Court held:

[T]he
issues
sought
to
be
investigated
by
the
respondent
Committee
is
one
over
which
jurisdiction had been acquired by
the Sandiganbayan. In short, the issue
has been pre-empted by that court. To
allow the respondent Committee to
conduct its own investigation of an
issue
already
before
the Sandigabayan would not only pose
the possibility of conflicting judgments
between a legislative committee and a
judicial tribunal, but if the Committees
judgment were to be reached before
that
of
the Sandiganbayan,
the
possibility of its influence being made to
bear on the ultimate judgment of
the Sandiganbayan can
not
be
discounted.
xxxxxx
IT IS IN VIEW OF THE FOREGOING
CONSIDERATIONS that
the
Commission
decided not to attend the Senate inquiry to testify
and produce evidence thereat.
Unconvinced with the above Compliance and Explanation,
the Committee on Government Corporations and Public
Enterprises and the Committee on Public Services issued an
Order[13] directing Major General Jose Balajadia (Ret.),
Senate Sergeant-At-Arms, to place Chairman Sabio and his
Commissioners under arrest for contempt of the
Senate. The Order bears the approval of Senate
President Villar and the majority of the Committees
members.
On September 12, 2006, at around 10:45 a.m., Major
General Balajadia arrested Chairman Sabio in his office
at IRC Building,
No.
82
EDSA, Mandaluyong City and
brought him to the Senate premises where he was detained.
Hence, Chairman Sabio filed with this Court a petition
for habeas corpus against the Senate Committee on
Government
Corporations
and
Public
Enterprises andCommittee on Public Services, their

Chairmen, Senators Richard Gordon and Joker P. Arroyo and


Members. The case was docketed as G.R. No. 174340.
Chairman Sabio, Commissioners Abcede, Conti, Nario,
and Javier, and the PCGGs nominees to Philcomsat Holdings
Corporation, Manuel Andal and Julio Jalandoni, likewise
filed a petition for certiorari and prohibition against the
same respondents, and also against Senate President
Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-atArms, and the entire Senate. The case was docketed as G.R.
No. 174318.
Meanwhile, Philcomsat Holdings Corporation and its
officers and directors, namely: Philip G. Brodett, Luis
K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto
L. Abad, Alma Kristina Alobba and Johnny Tan filed a
petition for certiorari and prohibition against the
Senate Committees on Government Corporations and Public
Enterprisesand Public Services, their Chairmen, Senators
Gordon and Arroyo, and Members. The case was docketed
as G.R. No. 174177.
In G.R. No. 174340 (for habeas corpus) and G.R.
No. 174318 (for certiorari and prohibition) Chairman Sabio,
Commissioners Abcede, Conti, Nario, and Javier; and
thePCGGs nominees Andal and Jalandoni alleged: first, resp
ondent Senate Committees disregarded Section 4(b) of E.O.
No. 1 without any justifiable reason; second, the inquiries
conducted by respondent Senate Committees are not in aid
of legislation; third, the inquiries were conducted in the
absence of duly published Senate Rules of Procedure
Governing
Inquiries
in
Aid
of
Legislation; and fourth, respondent Senate Committees are
not vested with the power of contempt.
In G.R. No. 174177, petitioners Philcomsat Holdings
Corporation
and
its
directors
and
officers
alleged: first, respondent Senate Committees have no
jurisdiction over the subject matter stated in Senate Res.
No. 455; second, the same inquiry is not in accordance with
the Senates Rules of Procedure Governing Inquiries in Aid
of Legislation; third,the subpoenae against the individual
petitioners are void for having been issued without
authority; fourth, the conduct of legislative inquiry pursuant

to Senate Res. No. 455 constitutes undue encroachment by


respondents
into justiciable controversies
over
which
several courts and tribunals have already acquired
jurisdiction; and fifth, the subpoenaeviolated
petitioners
rights to privacy and against self-incrimination.
In their Consolidated Comment, the above-named
respondents countered: first, the issues raised in the
petitions involve political questions over which this Court
has no jurisdiction; second, Section 4(b) has been repealed
by the Constitution; third, respondent Senate Committees
are vested with contempt power; fourth, Senates Rules of
Procedure Governing Inquiries in Aid of Legislation have
been duly published; fifth, respondents have not violated
any civil right of the individual petitioners, such as
their (a) right to privacy; and (b) right against selfincrimination; and sixth, the inquiry does not constitute
undue encroachment into justiciable controversies.
During the oral arguments held on September 21,
2006, the parties were directed to submit simultaneously
their respective memoranda within a non-extendible period
of fifteen (15) days from date. In the meantime, per
agreement of the parties, petitioner Chairman Sabio was
allowed to go home. Thus, his petition for habeas corpus has
become moot. The parties also agreed that the service of
the arrest warrants issued against all petitioners and the
proceedings before the respondent Senate Committees are
suspended during the pendency of the instant cases.[14]
Crucial to the resolution of the present petitions is the
fundamental issue of whether Section 4(b) of E.O. No. 1
is repealed by the 1987 Constitution. On this lone issue
hinges the merit of the contention of Chairman Sabio and
his Commissioners that their refusal to appear before
respondent Senate Committees is justified. With the
resolution of this issue, all the other issues raised by the
parties have become inconsequential.
Perched on one arm of the scale of justice is Article VI,
Section 21 of the 1987 Constitution granting respondent
Senate Committees the power of legislative inquiry. It reads:

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

On the other arm of the scale is Section 4(b) of E.O.


No.1 limiting such power of legislative inquiry by exempting
all PCGG members or staff from testifying in any judicial,
legislative or administrative proceeding, thus:
No member or staff of the Commission
shall be required to testify or produce
evidence in any judicial, legislative or
administrative
proceeding
concerning
matters within its official cognizance.

To determine whether there exists a clear and


unequivocal repugnancy between the two quoted provisions
that warrants a declaration that Section 4(b) has been
repealed by the 1987 Constitution, a brief consideration of
the Congress power of inquiry is imperative.
The Congress power of inquiry has been recognized in
foreign jurisdictions long before it reached our shores
through McGrain v.
Daugherty,[15] cited
in Arnault v.Nazareno.[16] In those earlier days, American
courts considered the power of inquiry as inherent in the
power
to
legislate.
The
1864
case
of Briggs
[17]
v. MacKellar
explains the breath and basis of the power,
thus:
Where no constitutional limitation or
restriction exists, it is competent for either of the
two bodies composing the legislature to do, in
their separate capacity, whatever may be
essential to enable them to legislate.It is wellestablished principle of this parliamentary law,

that either
house
may
institute
any
investigation having reference to its own
organization, the conduct or qualification of its
members, its proceedings, rights, or privileges
or any matter affecting the public interest
upon which it may be important that it
should have exact information, and in
respect to which it would be competent for it
to
legislate. The
right
to
pass
laws,
necessarily implies the right to obtain
information upon any matter which may
become the subject of a law. It is essential to
the full and intelligent exercise of the
legislative function.In American legislatures
the investigation of public matters before
committees, preliminary to legislation, or
with the view of advising the house
appointing
the
committee
is,
as
a
parliamentary usage, well established as it is
in England, and the right of either house to
compel witnesses to appear and testify before its
committee, and to punish for disobedience has
been frequently enforced.The right of inquiry, I
think, extends to other matters, in respect to
which it may be necessary, or may be deemed
advisable to apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar
theory. Citing McGrain, it recognized that the power of
inquiry is an essential and appropriate auxiliary to the
legislative function, thus:
Although there is no provision in the
Constitution expressly investing either House of
Congress with power to make investigations and
exact testimony to the end that it may exercise its
legislative functions advisedly and effectively,
such power is so far incidental to the legislative
function as to be implied. In other words, the
power of inquiry with process to enforce it is
an essential and appropriate auxiliary to the
legislative function. A legislative body cannot
legislate wisely or effectively in the absence
of information respecting the conditions
which the legislation is intended to affect or
change; and where the legislation body does

not itself possess the requisite information


which is not infrequently true recourse must
be had to others who possess it.
Dispelling any doubt as to the Philippine Congress
power of inquiry, provisions on such power made their
maiden appearance in Article VIII, Section 12 of the
1973 Constitution.[18] Then came the 1987 Constitution
incorporating the present Article VI, Section 12. What
was therefore implicit under the 1935 Constitution, as
influenced
by
American
jurisprudence,
became explicit under
the
1973
and
1987
[19]
Constitutions.
Notably, the 1987 Constitution recognizes the power of
investigation, not just of Congress, but also of any of its
committee. This is significant because it constitutes
adirect conferral of investigatory power upon the
committees and it means that the mechanisms which the
Houses can take in order to effectively perform its
investigative function are also available to the committees.
[20]

It can be said that the Congress power of inquiry has


gained more solid existence and expansive construal. The
Courts high regard to such power is rendered more evident
in Senate v. Ermita,[21] where it categorically ruled that the
power of inquiry is broad enough to cover officials of
the executive branch. Verily, the Court reinforced the
doctrine in Arnault that the operation of government,
being a legitimate subject for legislation, is a proper
subject for investigation and that the power of inquiry
is co-extensive with the power to legislate.
Considering these jurisprudential instructions, we find
Section 4(b) directly repugnant with Article VI, Section 21.
Section 4(b) exempts the PCGG members and staff from
the Congress power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision
granting such exemption. The Congress power of inquiry,
being broad, encompasses everything that concerns the
administration of existing laws as well as proposed or
possibly needed statutes.[22] It even extends to government
agencies created by Congress and officers whose

positions are within the power of Congress to regulate


or even abolish.[23] PCGG belongs to this class.
Certainly, a mere provision of law cannot pose a
limitation to the broad power of Congress, in the absence of
any constitutional basis.
Furthermore, Section 4(b) is also inconsistent
with Article XI, Section 1 of the Constitution stating
that: Public office is a public trust. Public officers and
employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest
lives.
The provision presupposes that since an incumbent of
a public office is invested with certain powers and charged
with certain duties pertinent to sovereignty, the powers so
delegated to the officer are held in trust for the
people and are to be exercised in behalf of the
government or of all citizens who may need the
intervention of the officers.Such trust extends to all
matters within the range of duties pertaining to the
office. In other words, public officers are but the
servants of the people, and not their rulers.[24]
Section 4(b), being in the nature of an immunity, is
inconsistent
with
the
principle
of
public
accountability. It places the PCGG members and staff
beyond the reach of courts, Congress and other
administrative bodies. Instead of encouraging public
accountability,
the
same
provision
only
institutionalizes
irresponsibility
and
nonaccountability. In Presidential
Commission
on
Good
[25]
Government v. Pea,
Justice Florentino P. Feliciano
characterized as obiter the portion of the majority opinion
barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a
civil case for damages filed against the PCGG and its
Commissioners. He eloquently opined:
The above underscored portions are, it is
respectfully
submitted,
clearly obiter. It
is
important to make clear that the Court is not

here interpreting, much less upholding as


valid and constitutional, the literal terms of
Section 4 (a), (b) of Executive Order No.1. If
Section 4 (a) were given its literal import as
immunizing the PCGG or any member thereof
from civil liability for anything done or omitted in
the discharge of the task contemplated by this
Order, the constitutionality of Section 4 (a) would,
in my submission, be open to most serious doubt.
For so viewed, Section 4 (a) would institutionalize
the irresponsibility and non-accountability of
members and staff of the PCGG, a notion that is
clearly repugnant to both the 1973 and 1987
Constitution and a privileged status not claimed
by any other official of the Republic under the
1987 Constitution. x x x.
xxxxxx
It would seem constitutionally offensive to
suppose that a member or staff member of
the PCGG could not be required to testify
before
the Sandiganbayan or
that
such
members were exempted from complying
with orders of this Court.
Chavez
v. Sandiganbayan[26] reiterates
the
same
view. Indeed, Section 4(b) has been frowned upon by this
Court even before the filing of the present petitions.
Corollarily, Section 4(b) also runs counter to the
following constitutional provisions ensuring the peoples
access to information:
Article II, Section 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.
Article III, Section 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.

These twin provisions of the Constitution seek to


promote transparency in policy-making and in the
operations of the government, as well as provide the people
sufficient information to enable them to exercise effectively
their constitutional rights. Armed with the right
information, citizens can participate in public discussions
leading to the formulation of government policies and their
effective implementation. In Valmonte v. Belmonte, Jr.[27] the
Court explained that an informed citizenry is essential to
the existence and proper functioning of any democracy,
thus:
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. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and
thus able to formulate its will intelligently. Only
when the participants in the discussion are aware
of the issues and have access to information
relating thereto can such bear fruit.

Consequently, the conduct of inquiries in aid of legislation is


not only intended to benefit Congress but also the
citizenry. The people are equally concerned with this
proceeding and have the right to participate therein in
order to protect their interests. The extent of their
participation will largely depend on the information
gathered and made known to them. In other words, the
right to information really goes hand-in-hand with the
constitutional policies of full public disclosure and honesty

in the public service. It is meant to enhance the widening


role of the citizenry in governmental decision-making as
well as in checking abuse in the government.[28] The cases
of Taada v. Tuvera[29] and Legaspi v.
Civil
Service
[30]
Commission
have recognized a citizens interest and
personality to enforce a public duty and to bring an action
to compel public officials and employees to perform that
duty.
Section 4(b) limits or obstructs the power of Congress
to secure from PCGG members and staff information and
other data in aid of its power to legislate. Again, this must
not be countenanced. In Senate v. Ermita,[31] this Court
stressed:
To the extent that investigations in aid of
legislation
are
generally
conducted
in
public, however,
any
executive
issuance
tending to unduly limit disclosures of
information
in
such
investigations
necessarily
deprives
the
people
of
information which, being presumed to be in
aid of legislation, is presumed to be a matter
of public concern. The citizens are thereby
denied access to information which they can use
in formulating their own opinions on the matter
before Congress opinions which they can then
communicate to their representatives and other
government officials through the various legal
means allowed by their freedom of expression.
A statute may be declared unconstitutional because it
is not within the legislative power to enact; or it creates
or establishes methods or forms that infringe constitutional
principles; or its purpose or effect violates the
Constitution or its basic principles.[32] As shown in the
above discussion, Section 4(b) is inconsistent with Article
VI, Section 21 (Congress power of inquiry), Article XI,
Section 1 (principle of public accountability), Article II,
Section 28 (policy of full disclosure) and Article III,
Section 7 (right to public information).
Significantly, Article
Constitution provides:

XVIII,

Section

of

the

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.
The clear import of this provision is that all existing laws,
executive orders, proclamations, letters of instructions and
other executive issuances inconsistent or repugnant to the
Constitution are repealed.
Jurisprudence is replete with decisions invalidating
laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances inconsistent with
the Constitution. In Pelaez v. Auditor General,[33] the Court
considered
repealed
Section
68
of
the
Revised
Administrative Code of 1917 authorizing the Executive to
change the seat of the government of any subdivision of
local governments, upon the approval of the 1935
Constitution. Section 68 was adjudged incompatible and
inconsistent with the Constitutional grant of limited
executive
supervision
over
local
governments. In Islamic Dawah Council of the Philippines,
Inc., v. Office of the Executive Secretary, [34] the Court
declared Executive Order No. 46, entitled Authorizing the
Office
on
Muslim
Affairs
to
Undertake
Philippine Halal Certification, void for encroaching on the
religious freedom of Muslims. In The Province of Batangas
v. Romulo,[35] the Court declared some provisions of the
General Appropriations Acts of 1999, 2000 and 2001
unconstitutional for violating the Constitutional precept on
local autonomy. And in Ople v. Torres,[36] the Court likewise
declared unconstitutional Administrative Order No. 308,
entitled Adoption of a National Computerized Identification
Reference System, for being violative of the right to privacy
protected by the Constitution.
These Decisions, and many others, highlight that the
Constitution is the highest law of the land. It is the basic
and paramount law to which all other laws must
conform and to which all persons, including the
highest officials of the land, must defer. No act shall
be valid, however noble its intentions, if it conflicts
with the Constitution.[37] Consequently, this Court has no

recourse but to declare Section


1 repealed by the 1987 Constitution.

4(b)

of

E.O.

No.

Significantly, during the oral arguments on September 21,


2006, Chairman Sabio admitted that should this Court rule
that Section 4(b) is unconstitutional or that it does not apply
to the Senate, he will answer the questions of the Senators,
thus:
CHIEF JUSTICE PANGANIBAN:
Okay. Now, if the Supreme Court rules that Sec.
4(b) is unconstitutional or that it does not
apply to the Senate, will you answer the
questions of the Senators?

CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a
judge. I was here in the Supreme Court as
Chief of Staff of Justice Feria. I would
definitely honor the Supreme Court and the
rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if
we say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I
am concerned.
With his admission, Chairman Sabio is not fully convinced
that he and his Commissioners are shielded from testifying
before respondent Senate Committees by Section 4(b) of
E.O. No. 1. In effect, his argument that the said provision
exempts him and his co-respondent Commissioners from
testifying before respondent Senate Committees concerning
Senate Res. No. 455 utterly lacks merit.

Incidentally, an argument repeated by Chairman Sabio is


that respondent Senate Committees have no power to
punish him and his Commissioners for contempt of the
Senate.
The argument is misleading.
Article VI, Section 21 provides:
The
Senate
or
the
House
of
Representatives or any of its respective
committees may conduct inquiries in aid of
legislation in accordance with its duly
published rules of procedure. The rights of
persons appearing in or affected by such
inquiries shall be respected.
It must be stressed that the Order of Arrest for
contempt of Senate Committees and the Philippine Senate
was approved by Senate President Villar and signed by
fifteen (15) Senators. From this, it can be concluded that
the Order is under the authority, not only of the respondent
Senate Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of
inquiry not only to the Senate and the House of
Representatives, but also to any of their respective
committees.Clearly, there is a direct conferral of
power to
the
committees. Father
Bernas,
in
his
Commentary on the 1987 Constitution, correctly pointed out
its significance:
It should also be noted that the Constitution
explicitly recognizes the power of investigation
not just of Congress but also of any of its
committees. This is significant because it
constitutes a direct conferral of investigatory
power upon the committees and it means
that the means which the Houses can take in
order to effectively perform its investigative
function
are
also
available
to
the
[38]
Committees.

This is a reasonable conclusion. The conferral of the


legislative power of inquiry upon any committee of
Congress must carry with it all powers necessary and
proper for its effective discharge. Otherwise, Article VI,
Section 21 will be meaningless. The indispensability and
usefulness of the power of contempt in a legislative inquiry
is underscored in a catena of cases, foreign and local.
In the 1821 case of Anderson v. Dunn,[39] the function of
the Houses of Congress with respect to the contempt power
was likened to that of a court, thus:
But the court in its reasoning goes beyond
this, and though the grounds of the decision are
not very clearly stated, we take them to be: that
there is in some cases a power in each House
of Congress to punish for contempt; that this
power is analogous to that exercised by
courts of justice, and that it being the well
established doctrine that when it appears
that a prisoner is held under the order of a
court of general jurisdiction for a contempt
of its authority, no other court will discharge
the prisoner or make further inquiry into the
cause of his commitment. That this is the
general ruleas regards the relation of one court to
another must be conceded.

In McGrain,[40] the U.S. Supreme Court held: Experience


has shown that mere requests for such information
are often unavailing, and also that information which
is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what
is needed. The Court, in Arnault v. Nazareno,[41] sustained
the Congress power of contempt on the basis of this
observation.
In Arnault v. Balagtas,[42] the Court further explained
that the contempt power of Congress is founded upon
reason and policy and that the power of inquiry will not be
complete if for every contumacious act, Congress has to
resort to judicial interference, thus:

The principle that Congress or any of its


bodies has the power to punish recalcitrant
witnesses is founded upon reason and policy. Said
power must be considered implied or incidental to
the exercise of legislative power. How could a
legislative body obtain the knowledge and
information on which to base intended
legislation if it cannot require and compel
the disclosure of such knowledge and
information if it is impotent to punish a
defiance of its power and authority? When
the framers of the Constitution adopted the
principle of separation of powers, making
each branch supreme within the realm of its
respective authority, it must have intended
each departments authority to be full and
complete, independently of the others
authority or power. And how could the
authority and power become complete if for
every act of refusal, every act of defiance,
every act of contumacy against it, the
legislative body must resort to the judicial
department for the appropriate remedy,
because it is impotent by itself to punish or
deal therewith, with the affronts committed
against its authority or dignity.[43]
In Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete,[44] the
Court
characterized contempt power as a matter of selfpreservation, thus:
The exercise by the legislature of the
contempt
power
is
a matter
of
selfpreservation as that branch of the government
vested with the legislative power, independently
of the judicial branch, asserts its authority and
punishes contempts thereof. The contempt power
of the legislature is, therefore, sui generis x x x.
Meanwhile, with respect to G.R. No. 174177, the petition
of Philcomsat Holdings Corporation and its directors and
officers, this Court holds that the respondent Senate

Committees inquiry does not violate their right to privacy


and right against self-incrimination.
One important limitation on the Congress power of
inquiry is that the rights of persons appearing in or
affected by such inquiries shall be respected. This is
just another way of saying that the power of inquiry must be
subject to the limitations placed by the Constitution on
government action. As held in Barenblatt v. United States,
[45]
the Congress, in common with all the other
branches of the Government, must exercise its powers
subject to the limitations placed by the Constitution
on governmental action, more particularly in the
context of this case, the relevant limitations of the Bill
of Rights.
First is the right to privacy.

Zones of privacy are recognized and protected in our laws.[46] Within


these zones, any form of intrusion is impermissible unless excused by law
and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to
privacy is a constitutional right and the right most valued by civilized men,
[47]
but also from our adherence to the Universal Declaration of Human
Rights which mandates that, no one shall be subjected to arbitrary
interference with his privacy and everyone has the right to the protection of
the law against such interference or attacks.[48]

Our Bill of Rights, enshrined in Article III of the


Constitution, provides at least two guarantees that explicitly
create zones of privacy. It highlights a persons right to be
let alone or the right to determine what, how much, to
whom and when information about himself shall be
disclosed.[49] Section
2 guarantees the right of the people to be secure in
their persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature
and
for
any
purpose. Section
3 renders inviolable the privacyof communication
and
correspondence and further cautions that any
evidence
obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any
proceeding.

In evaluating a claim for violation of the right to


privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if so,
whether that expectation has been violated by unreasonable
government intrusion.[50] Applying this determination to
these cases, the important inquiries are: first, did the
directors and officers of Philcomsat Holdings Corporation
exhibit
a
reasonable
expectation
of
privacy?;
and second, did the government violate such expectation?
The answers are in the negative. Petitioners were
invited in the Senates public hearing to deliberate on
Senate Res. No. 455, particularly on the anomalous
losses
incurred
by
the
Philippine
Overseas
Telecommunications Corporation (POTC), Philippine
Communications
Satellite
Corporation
(PHILCOMSAT),
and Philcomsat Holdings
Corporations (PHC) due to the alleged improprieties
in the operations by their respective board of
directors. Obviously, the inquiry focus on petitioners acts
committed in the discharge of their duties as officers and
directors
of
the
said
corporations,
particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable
expectation of privacy over matters involving their
offices in a corporation where the government has
interest. Certainly, such matters are of public concern
and over which the people have the right to
information.
This goes to show that the right to privacy is not
absolute where there is an overriding compelling state
interest. In Morfe v. Mutuc,[51] the
Court,
in
line
[52]
with Whalen v. Roe,
employed the rational basis
relationship test when it held that there was no
infringement of the individuals right to privacy as the
requirement to disclosure information is for a valid purpose,
i.e., to curtail and minimize the opportunities for official
corruption, maintain a standard of honesty in public service,
and
promote
morality
in
public
administration.
[54]
[53]
In Valmonte v. Belmonte,
the Court remarked that as
public
figures,
the
Members
of
the former Batasang Pambansa enjoy a more limited right
to privacyas compared to ordinary individuals, and their
actions are subject to closer scrutiny. Taking this into
consideration, the Court ruled that the right of the people to

access information on matters of public concern prevails


over the right to privacy of financial transactions.
Under the present circumstances, the alleged
anomalies in the PHILCOMSAT, PHC and POTC, ranging in
millions of pesos, and the conspiratorial participation of the
PCGG and its officials are compelling reasons for the
Senate to exact vital information from the directors and
officers of Philcomsat Holdings Corporations, as well as
from Chairman Sabio and his Commissioners to aid it in
crafting the necessary legislation to prevent corruption and
formulate remedial measures and policy determination
regardingPCGGs efficacy. There
being
no
reasonable
expectation of privacy on the part of those directors and
officers over the subject covered by Senate Res. No. 455, it
follows that their right to privacy has not been violated by
respondent Senate Committees.
Anent the right against self-incrimination, it must be
emphasized that this right maybe invoked by the said
directors
and
officers
of Philcomsat Holdings
Corporation only when the incriminating question is
being asked, since they have no way of knowing
in advance the nature or effect of the questions to be
asked of them.[55] That this right may possibly be violated
or abused is no ground for denying respondent Senate
Committees their power of inquiry. The consolation is that
when this power is abused, such issue may be presented
before the courts. At this juncture, what is important is that
respondent Senate Committees have sufficient Rules to
guide them when the right against self-incrimination is
invoked. Sec. 19 reads:

Sec. 19. Privilege Against Self-Incrimination

A witness can invoke his right against selfincrimination only when a question tends to elicit
an answer that will incriminate him is propounded
to him. However, he may offer to answer any
question in an executive session.

No person can refuse to testify or be placed


under oath or affirmation or answer questions
before an incriminatory question is asked. His
invocation of such right does not by itself excuse
him from his duty to give testimony.
In such a case, the Committee, by a majority
vote of the members present there being a
quorum, shall determine whether the right has
been properly invoked. If the Committee decides
otherwise, it shall resume its investigation and
the question or questions previously refused to be
answered shall be repeated to the witness. If the
latter continues to refuse to answer the question,
the Committee may punish him for contempt for
contumacious conduct.

The same directors and officers contend that the


Senate is barred from inquiring into the same issues being
litigated
before
the
Court
of
Appeals
and
the Sandiganbayan.Suffice it to state that the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation
provide that the filing or pendency of any prosecution of
criminal or administrative action should not stop or abate
any inquiry to carry out a legislative purpose.
Let it be stressed at this point that so long as the
constitutional rights of witnesses, like Chairman Sabio and
his Commissioners, will be respected by respondent Senate
Committees, it their duty to cooperate with them in their
efforts to obtain the facts needed for intelligent legislative
action. The unremitting obligation of every citizen is to
respond to subpoenae, to respect the dignity of the
Congress and its Committees, and to testify fully with
respect to matters within the realm of proper investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners
Ricardo Abcede,
Narciso Nario, Nicasio Conti,
and Tereso Javier;
and
Manuel Andal and
Julio Jalandoni, PCGGsnominees
to Philcomsat Holdings
Corporation, as well as its directors and officers, must
comply with the Subpoenae Ad Testificandum issued by

respondent Senate Committees directing them to appear


and testify in public hearings relative to Senate Resolution
No. 455.
WHEREFORE, the petition in G.R. No. 174340
for habeas corpus is DISMISSED, for being moot. The
petitions in G.R Nos. 174318 and 174177 are
likewiseDISMISSED.
Section 4(b) of E.O. No. 1 is declared REPEALED by
the 1987 Constitution. Respondent Senate Committees
power of inquiry relative to Senate Resolution 455 is
upheld.PCGG Chairman Camilo L. Sabio and Commissioners
Ricardo Abcede,
Narciso Nario, Nicasio Conti
and Tereso Javier;
and
Manuel Andal and
Julio Jalandoni, PCGGsnominees
to Philcomsat Holdings
Corporation, as well as its directors and officers, petitioners
in G.R. No. 174177, are ordered to comply with
the Subpoenae Ad Testificandumissued
by
respondent
Senate Committees directing them to appear and testify in
public hearings relative to Senate Resolution No. 455.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-

RENATO C. CORONA

MARTINEZ
Associate Justice

Associate Justice

CONCHITA CARPIO MORALES


Associate Justice
ADOLFO S. AZCUNA
Associate Justice

ROMEO J. CALLEJO, SR.


Associate Justice
MINITA CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Associate Justice

DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is


hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the
writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]

E.O. No. 1 was issued by Former President Aquino in the exercise of her legislative power
under the Provisional (Freedom) Constitution. Thus, it is of the same category and has
the same binding force as a statute. (Agpalo, Statutory Construction, 1998
citing Legaspi v. Ministry of Finance, 115 SCRA 418 [1982]; Garcia-Padilla v.
Ponce Enrile, G.R. No. 61388, April 20, 1983; Aquino v. Commission on Elections, 62
SCRA 275 [1975] )

[2]

Section 2 (a), Executive Order No.1.

[3]

See Presidential Commission on Good Government v. Pena, April 12, 1988, 159 SCRA 558

[4]

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

[5]

Id.

[6]

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

[7]

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

[8]

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

[9]

Petition in G.R. No. 174177 at p. 15.

[10]

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

[11]

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

[12]

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

[13]

Annex D of the petition in G.R. No. 174318.

[14]

En Banc Resolution dated September 21, 2006.

[15]

273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927).

[16]

No. L- 3820, 87 Phil. 29 (1950).

[17]

2 Abb. Pr. 30 (N.Y. 1864).

[18]

Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22.

[19]

Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.737.

[20]

Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.739.

[21]

G.R. No. 169777, April 20, 2006.

[22]

Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195.

[23]

Senate v. Ermita, Id.

[24]

De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.

[25]

No. L-77663, April 12, 1988, 159 SCRA 558.

[26]

193 SCRA 282 (1991).

[27]

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

[28]

Valmonte v. Belmonte, Jr., supra.

[29]

136 SCRA 27.

[30]

150 SCRA 530.

[31]

Supra.

[32]

Agpalo, Statutory Construction, 1998 citing In re Cunanan, 94 Phil. 534 (1954).

[33]

No. L-23825, December 24, 1965, 15 SCRA 569.

[34]

G.R. No. 153888, July 9, 2003, 405 SCRA 497.

[35]

G.R. No. 152774, May 27, 2004, 429 SCRA 736.

[36]

293 SCRA 141 (1998).

[37]

Cruz, Constitutional Law, 2003, p. 4.

[38]

Bernas, S.J., The 1987 Constitution of the Republic of the Philippines A Commentary, p. 678.

[39]

19 U.S. [6 Wheat.] 204 (1821) cited in Justice Puno, Legislative Investigations and Right to Privacy.

[40]

Supra.

[41]

Supra.

[42]

97 Phil. 358 [1955].

[43]

Id.

[44]

No. L-72492, November 5, 1987, 155 SCRA 421.

[45]

360 U.S. 109 (1959).

[46]

Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.

[47]

See Morfe v. Mutuc No. L-20387, January 31, 1968, 22 SCRA 424.

[48]

Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the
International Covenant on Civil and Political Rights.

[49]

Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and
Jurisprudence, 1990, at 221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7
(1970).

[50]

Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974). See Katz v.
United states (1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People
v. Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8 Cal. 3d 623-624,105
Cal. Rptr. 521, 504 P. 2d 457. INSERT Herreras Handbook on Arrest, Search and Seizure.

[51]

Supra.

[52]

429 U.S. 589 (1977).

[53]

Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.

[54]

170 SCRA 256 (1989)

[55]

Cruz, Constitutional Law, 2003, p. 307.

EN BANC

G.R. No. 176970


ROGELIO Z. BAGABUYO,
Petitioner,
Present:

versus -

COMMISSION ON
ELECTIONS,
Respondent.

PUNO, C.J.,
QUISUMBING,
*
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
Promulgated:
December 8, 2008

x---------------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Before us is the petition for certiorari, prohibition, and


mandamus,[1] with a prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction, filed
by Rogelio Bagabuyo (petitioner) to prevent the Commission
on Elections (COMELEC) from implementing Resolution No.
7837 on the ground that Republic Act No. 9371[2] the law
that Resolution No. 7837 implements is unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros then
Congressman Constantino G. Jaraula filed and sponsored
House Bill No. 5859: An Act Providing for the
Apportionment of the Lone Legislative District of the City
of Cagayan De Oro.[3] This law eventually became Republic
Act (R.A.) No. 9371.[4] It increased Cagayan de Oros
legislative district from one to two. For the election of May
2007, Cagayan de Oros voters would be classified as
belonging to either the first or the second district,
depending on their place of residence. The constituents of
each district would elect their own representative to
Congress as well as eight members of the Sangguniang
Panglungsod.
Section 1 of R.A. No. 9371 apportioned the
Citys 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. 7837[6] 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 petitioners 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 respondents 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, orbarangay;
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 Oros territory, population and income
classification; hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the
Courts 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
Citys 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 voters sovereign power to decide on
who should be elected as the entire citys 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
representation doctrine?

violate

OUR RULING

the

equality

of

Except for the issue of the hierarchy of courts rule, we


find the petition totally without merit.
The hierarchy
principle.

of

courts

The Supreme Court has original jurisdiction over


petitions
for
certiorari,
prohibition, mandamus, quo
[11]
warranto, and habeas corpus.
It was pursuant to this
original jurisdiction that the petitioner filed the present
petition.
While this jurisdiction is shared with the Court of
Appeals[12] and the RTCs,[13] a direct invocation of the
Supreme Courts 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
warrantoagainst our nations lawmakers when the validity of
their enactments is assailed.[15] The present petition is of
this nature; its subject matter and the nature of the issues
raised among them, whether legislative reapportionment
involves a division of Cagayan de Oro City as a local
government unit are reasons enough for considering it an
exception
to
the
principle
of
hierarchy
of
courts. Additionally, the petition assails as well a resolution
of the COMELEC en banc issued to implement the
legislative apportionment that R.A. No. 9371 decrees. As an
action against a COMELEC en banc resolution, the case
falls under Rule 64 of the Rules of Court that in turn
requires a review by this Court via a Rule 65 petition
for certiorari.[16] For these reasons, we do not see the
principle of hierarchy of courts to be a stumbling block in
our consideration of the present case.

The
Requirement.

Plebiscite

The petitioner insists that R.A. No. 9371 converts and


divides the City of Cagayan de Oro as a local government
unit, and does not merely provide for the Citys legislative
apportionment. This argument essentially proceeds from a
misunderstanding of the constitutional concepts of
apportionment of legislative districts and division of local
government units.
Legislative apportionment is defined by Blacks Law
Dictionary as the determination of the number of
representatives which a State, county or other subdivision
may send to a legislative body. [17] It is the allocation of seats
in a legislative body in proportion to the population; the
drawing of voting district lines so as to equalize population
and
voting
power
among
the
districts.
[18]
Reapportionment,
on
the
other
hand,
is
the realignment or change in legislative districts brought
about by changes in population and mandated by the
constitutional requirement of equality of representation.[19]
Article VI (entitled Legislative Department) of the 1987
Constitution
lays
down
the
rules
on
legislative
apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives
shall be composed of not more than two hundred
fifty members unless otherwise fixed by law, who
shall be elected from legislative districts
apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and
those who, as provided by law, shall be elected
through a party-list system of registered national,
regional and sectoral parties or organizations.
xxx
(3) Each legislative district shall comprise, as
far as practicable, continuous, compact, and
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
[20]
and barangays.
In its strict and proper sense, a
municipality has been defined as a body politic and
corporate constituted by the incorporation of the
inhabitants of a city or town for the purpose of local
government thereof.[21] The creation, division, merger,
abolition or alteration of boundary of local government
units, i.e., of
provinces,
cities,
municipalities,
and barangays, are covered by the Article on Local
Government (Article X). Section 10 of this Article provides:
No province, city, municipality, or barangay may
be created, divided, merged, abolished, or its
boundary
substantially
altered,
except
in
accordance with the criteria established in the
local government code and subject to approval by
a majority of the votes cast in a plebiscite in the
political unit directly affected.
Under both Article VI, Section 5, and Article X, Section
10 of the Constitution, the authority to act has been vested
in the Legislature. The Legislature undertakes the
apportionment and reapportionment of legislative districts,
[22]
and likewise acts on local government units by setting
the standards for their creation, division, merger, abolition
and alteration of boundaries and by actually creating,
dividing, merging, abolishing local government units and
altering their boundaries through legislation. Other than
this, not much commonality exists between the two
provisions since they are inherently different although they
interface and relate with one another.
The concern that leaps from the text of Article VI,
Section 5 is political representation and the means to make
a legislative district sufficiently represented so that the
people can be effectively heard. As above stated, the aim of
legislative apportionment is to equalize population and

voting power among districts.[23] Hence, emphasis is given


to the number of people represented; the uniform and
progressive ratio to be observed among the representative
districts; and accessibility and commonality of interests in
terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the
people represented, every city with at least 250,000 people
and every province (irrespective of population) is entitled to
one representative. In this sense, legislative districts, on the
one hand, and provinces and cities, on the other, relate and
interface with each other. To ensure continued adherence to
the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given
standards are met.
In contrast with the equal representation objective of
Article VI, Section 5, Article X, Section 10 expressly speaks
of how local government units may be created, divided,
merged, abolished, or its boundary substantially altered. Its
concern is the commencement, the termination, and the
modification of local government units corporate existence
and territorial coverage; and it speaks of two specific
standards that must be observed in implementing this
concern, namely, the criteria established in the local
government code and the approval by a majority of the
votes cast in a plebiscite in the political units directly
affected. Under the Local Government Code (R.A. No. 7160)
passed in 1991, the criteria of income, population and land
area are specified as verifiable indicators of viability and
capacity to provide services.[24] The division or merger of
existing units must comply with the same requirements
(since a new local government unit will come into being),
provided that a division shall not reduce the income,
population, or land area of the unit affected to less than the
minimum requirement prescribed in the Code.[25]
A pronounced distinction between Article VI, Section 5
and, Article X, Section 10 is on the requirement of a
plebiscite. The Constitution and the Local Government Code
expressly require a plebiscite to carry out any creation,
division, merger, abolition or alteration of boundary of a
local
government unit.[26] In contrast, no plebiscite requirement
exists under the apportionment or reapportionment
provision. In Tobias v. Abalos,[27] a case that arose from the
division of the congressional district formerly covering San
Juan and Mandaluyong into separate districts, we confirmed

this distinction and the fact that no plebiscite is needed in a


legislative reapportionment. The plebiscite issue came up
because one was ordered and held for Mandaluyong in the
course of its conversion into a highly urbanized city, while
none was held for San Juan. In explaining why this
happened, the Court ruled that no plebiscite was necessary
for San Juan because the objective of the plebiscite was the
conversion of Mandaluyong into a highly urbanized city as
required by Article X, Section 10 the Local Government
Code; the creation of a new legislative district only followed
as a consequence. In other words, the apportionment alone
and by itself did not call for a plebiscite, so that none was
needed for San Juan where only a reapportionment took
place.
The need for a plebiscite under Article X, Section 10 and the
lack of requirement for one under Article VI, Section 5 can
best be appreciated by a consideration of the historical
roots of these two provisions, the nature of the concepts
they embody as heretofore discussed, and their areas of
application.
A Bit of History.
In Macias v. COMELEC,[28] we first jurisprudentially
acknowledged the American roots of our apportionment
provision,
noting
its
roots
from
the
[29]
Fourteenth Amendment
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.
2264[33] 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 units corporate
existence begins upon the election and qualification of its
chief executive and a majority of the members of
its Sanggunian.[37]
As a political subdivision, a local government unit is an
instrumentality of the state in carrying out the functions of
government.[38] As a corporate entity with a distinct and

separate juridical personality from the State, it exercises


special functions for the sole benefit of its constituents. It
acts as an agency of the community in the administration of
local affairs[39] and the mediums through which the people
act in their corporate capacity on local concerns. [40] In light
of these roles, the Constitution saw it fit to expressly secure
the consent of the people affected by the creation, division,
merger, abolition or alteration of boundaries of local
government units through a plebiscite.
These considerations clearly show the distinctions between
a legislative apportionment or reapportionment and the
division of a local government unit. Historically and by its
intrinsic nature, a legislative apportionment does not
mean, and does not even imply, a division of a local
government
unit
where
the
apportionment
takes
place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under
the Local Government Code should not apply to and be a
requisite for the validity of a legislative apportionment or
reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837


R.A. No. 9371 is, on its face, purely and simply a
reapportionment legislation passed in accordance with the
authority granted to Congress under Article VI, Section 5(4)
of the Constitution. Its core provision Section 1 provides:
SECTION 1. Legislative Districts. The lone
legislative district of the City of Cagayan de Oro is
hereby apportioned to commence in the next
national elections after the effectivity of this Act.
Henceforth,
barangays
Bonbon,
Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan,
Balulang,
Lumbia,
Pagalungan,
Tagpangi,
Taglimao,
Tuburan,
Pigsag-an,
Tumpagon,
Bayanga, Mambuaya, Dansulihon, Tignapoloan
and Bisigan shall comprise the first district while
barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macansandig, Indahag,
Lapasan, Gusa, Cugman, FS Catanico, Tablon,
Agusan, Puerto, Bugo and Balubal and all urban

barangays from Barangay 1 to Barangay 40 shall


comprise the second district.
Under these wordings, no division of Cagayan de Oro
City as a political and corporate entity takes place or is
mandated. Cagayan de Oro City politically remains a single
unit and its administration is not divided along territorial
lines. Its territory remains completely whole and intact;
there is only the addition of another legislative district and
the delineation of the city into two districts for purposes of
representation in the House of Representatives. Thus,
Article X, Section 10 of the Constitution does not come into
play and no plebiscite is necessary to validly apportion
Cagayan de Oro City into two districts.
Admittedly, the legislative reapportionment carries
effects beyond the creation of another congressional district
in the city by providing, as reflected in COMELEC
Resolution
No.
7837,
for
additional Sangguniang
Panglunsod seats to be voted for along the lines of the
congressional
apportionment
made. The
effect
on
the Sangguniang Panglunsod, however, is not directly
traceable to R.A. No. 9371 but to another law R.A. No.
6636[41] whose Section 3 provides:
SECTION 3. Other Cities. The provision of any
law to the contrary notwithstanding the City of
Cebu, City of Davao, and any other city with more
than one representative district shall have eight
(8) councilors for each district who shall be
residents thereof to be elected by the qualified
voters therein, provided that the cities of Cagayan
de Oro, Zamboanga, Bacolod, Iloilo and other
cities comprising a representative district shall
have twelve (12) councilors each and all other
cities shall have ten (10) councilors each to be
elected at large by the qualified voters of the said
cities: Provided, That in no case shall the present
number of councilors according to their charters
be reduced.
However, neither does this law have the effect of dividing
the City of Cagayan de Oro into two political and corporate
units and territories. Rather than divide the city either
territorially or as a corporate entity, the effect is merely to
enhance voter representation by giving each city voter more

and greater say, both in Congress and in the Sangguniang


Panglunsod.
To illustrate this effect, before the reapportionment,
Cagayan de Oro had only one congressman and 12 city
council
members
citywide
for
its
population
of
[42]
approximately 500,000.
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 citys 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. COMELEC[44] 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 theoffici


al 1995 Census of Population as certified to by Tomas P. Afri
ca, Administrator of the National Statistics Office.
The petitioner, unfortunately, did not provide information
about the actual population of Cagayan de Oro City.
However, we take judicial notice of the August 2007 census
of
the
National
Statistics
Office
which
shows
that barangays comprising Cagayan de Oros 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 petitioners 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 ruralbarangays 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.
ARTURO D. BRION
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

ANTONIO T. CARPIO
Associate Justice

(On leave)
CONSUELO YNARESSANTIAGO
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ


Associate Justice

RENATO C. CORONA
Associate Justice
CONCHITA CARPIO
MORALES
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
RUBEN T. REYES
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution,


it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

On leave.

[1]

Under Rule 65 of the Rules of Court.

[2]

An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro.

[3]

Rollo, p. 214.

[4]

Id., p. 25.

[5]

Id., p. 25.

[6]

Id., pp. 23-24.

[7]

Id., pp. 3-22.

[8]

Id., pp. 60-93

[9]

G.R. No. 138298, November 29, 2000, 346 SCRA 485.

[10]

Rollo, pp. 123-148.

[11]

CONSTITUTION, Article VIII, Section 5(1).

[12]

Sec. 9 (1), B.P. Blg. 129.

[13]

Sec. 21 (1), B.P. Blg. 129.

[14]
[15]

See: People v. Cuaresma, G.R. No. 67787, April 18, 1989, 172 SCRA 415.
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

[16]

See: Bautista v. COMELEC, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA
299.

[17]

Blacks Law Dictionary, 5th Edition, p. 91.

[18]

Clapp, James E., Dictionary of Law (2000), p. 33.

[19]

Blacks Law Dictionary, supra note 17, p. 1137.

[20]

CONSTITUTION, Art. X, Sec. 1.

[21]

Martin, Public Corporations, Revised 1983 Edition, p. 5.

[22]

Article VI, Section 5; Montejo v. COMELEC, 312 Phil. 492 (1995).

[23]

Supra note 18.

[24]

Section 7, Local Government Code.

[25]

CONSTITUTION, Art. X, Sec. 10.

[26]

SEC. 10. Plebiscite Requirement. - No creation, division, merger, abolition,


or substantial alteration of boundaries of local government units shall take
effect unless approved by a majority of the votes cast in a plebiscite called
for the purpose in the political unit or units directly affected. Said
plebiscite shall be conducted by the Commission on Elections (Comelec)
within one hundred twenty (120) days from the date of effectivity of the law
or ordinance effecting such action, unless said law or ordinance fixes
another date.

[27]

G.R. No. 114783, December 8, 1994, 239 SCRA 106.

[28]

G.R. No. L-18684, September 14, 1961, 113 Phil. 1 (1961).

[29]

The Fourteenth Amendment of the U.S. Constitution provides the basis for the
requirement of an equitable apportionment scheme. See generally, Colegrove v.
Green, 328 U.S. 549, cited in Macias v. COMELEC, supra note 28.

[30]

People v. Santiago, 43 Phil 120 (1922).

[31]

Supra note 28.

[32]

G.R. No. 118702, March 16, 1995.

[33]

An Act Amending the Laws Governing Local Governments by Increasing


Autonomy and Reorganizing Provincial Governments.

their

[34]

A plebiscite was a conditio sine qua non in the creation of municipal corporations
including, but not limited to, the following: 1) the City of Angeles, R.A. 3700; 2)
the Municipality of Pio Duran in the Province of Albay, R.A. 3817; 3) the Provinces
of Northern Samar, Eastern Samar and Western Samar, R.A. 4221; 4) the
Provinces of Agusan del Norte and Agusan del Sur, R.A. 4979. The prior approval
of
a
majority
of
the
qualified
voters
of
certain sitios of
the Municipality ofAnilao was also required before the transfer of the
same sitios to the Municipality of Banate under R.A. 4614 took effect.

[35]

Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., G.R. No. 135962,
March 27, 2000, 328 SCRA 836.

[36]

CONSTITUTION, Article X, Secs. 3 and 10; Aquilino Pimentel, Jr., The Local Government Code of
1991: The Key to National Development, p. 5.

[37]

Sec. 14, Local Government Code.

[38]

Lidasan v. Commission on Elections, G.R. No. L-28089 October 25, 1967, 21 SCRA 496.

[39]

Ibid.

[40]

Section 15 of the Local Government


Code provides: Political and Corporate Nature of Local
Government Units. - Every local government unit created or recognized under this Code is a body politic
and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall
exercise powers as a political subdivision of the national government and as a corporate entity
representing the inhabitants of its territory.

[41]

Enacted into law on November 6, 1987.

[42]

As provided by COMELEC Res. No. 7801 that COMELEC Res. No. 7837 superseded.

[43]

Rollo, p. 71.

[44]

G.R. No. 131499, November 17, 1999, 318 SCRA 337.

[45]

Total Population by Province, City, Municipality and Barangay: as of August 1,


2007 <http://www.census.gov.ph/data/sectordata/2007/region%2010.pdf >, last
accessed November 5, 2008.
[46]
Harlan, dissenting opinion in Baker v. Carr, 369 U. S. 186 citing Allied Stores of
Ohio v. Bowers, 358 U.S. 522 and McGowan v. Maryland, 366 U.S. 420, in which
the Supreme Court ruled that the Equal Protection Clause does not demand of
legislation finicky or exact conformity to abstract correlation xxx. The Constitution
is satisfied if a legislature responds to the practical living facts with which it deals.
Through what precise points in a field of many competing pressures a legislature
might most suitably have drawn its lines is not a question for judicial reexamination. It is enough to satisfy the Constitution that in drawing them the
principle of reason has not been disregarded. And what degree of uniformity
reason demands of a statute is, of course, a function of the complexity of the needs
which the statute seeks to accommodate.
[47]

Tobias v. Abalos, G.R. No. L-114783, December 8, 1994, 239 SCRA 106.

EN BANC
*
SENATE
OF
THE G.R. No. 169777
Present:
PHILIPPINES,
represented
by FRANKLIN M. DRILON,
PANGANIBAN, C.J.,
in his capacity as Senate
PUNO,**
President,
JUAN
M.
QUISUMBING,
FLAVIER, in his capacity as
YNARES-SANTIAGO,
Senate
President Pro
SANDOVAL-GUTIERREZ,
Tempore,
FRANCIS
N.
CARPIO,
PANGILINAN, in his capacity
AUSTRIA-MARTINEZ,
as
Majority
Leader,
CORONA,
AQUILINO Q. PIMENTEL,
CARPIO MORALES,
JR., in his capacity as
CALLEJO, SR.,
Minority Leader, SENATORS
AZCUNA,
RODOLFO
G.
BIAZON,
TINGA,
COMPANERA
PIA
S.
CHICO-NAZARIO,
CAYETANO,
JINGGOY
GARCIA, and
EJERCITO ESTRADA, LUISA
VELASCO, JR., JJ.
LOI EJERCITO ESTRADA,
JUAN
PONCE
ENRILE,
RICHARD
J.
GORDON,
PANFILO
M.
LACSON,
ALFREDO S. LIM, M. A.
MADRIGAL,
SERGIO
Promulgated:
OSMENA III, RALPH G.
RECTO, and MAR ROXAS,
Petitioners,
April 20, 2006

- versus EDUARDO R. ERMITA, in his


capacity
as
Executive
Secretary and alter-ego of
President Gloria MacapagalArroyo, and anyone acting in
his stead and in behalf of the G.R. No. 169659
President of the Philippines,
Respondents.
x-----------------------------------------x

BAYAN MUNA represented


by DR. REYNALDO LESACA,
JR., Rep. SATUR OCAMPO,
Rep. CRISPIN BELTRAN,
Rep. RAFAEL MARIANO,
Rep. LIZA MAZA, Rep.
TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE
represented by FERDINAND
GAITE, and COUNSELS FOR
THE
DEFENSE
OF
LIBERTIES
(CODAL)
represented
by
ATTY.
REMEDIOS BALBIN,
Petitioners,
G.R. No. 169660

- versus EDUARDO ERMITA, in his


capacity
as
Executive
Secretary and alter-ego of
President Gloria MacapagalArroyo,
Respondent.
x-----------------------------------------x
FRANCISCO I. CHAVEZ,
Petitioner,
- versus -

G.R. No. 169667

EDUARDO R. ERMITA, in his


capacity
as
Executive
Secretary, AVELINO J. CRUZ,
JR., in his capacity as
Secretary of Defense, and
GENEROSO S. SENGA, in his
capacity as AFP Chief of
Staff,
Respondents.
x------------------------------------------ G.R. No. 169834
x
ALTERNATIVE
GROUPS, INC. (ALG),
Petitioner,
- versus -

LAW

HON. EDUARDO R. ERMITA,


in his capacity as Executive G.R. No. 171246
Secretary,
Respondent.
x-----------------------------------------x
PDP- LABAN,
Petitioner,
- versus EXECUTIVE
SECRETARY
EDUARDO R. ERMITA,
Respondent.
x-----------------------------------------x
JOSE ANSELMO I. CADIZ,
FELICIANO
M.
BAUTISTA,ROMULO
R.
RIVERA,
JOSE
AMOR
AMORANDO,
ALICIA
A.
RISOS-VIDAL, FILEMON C.
ABELITA III, MANUEL P.
LEGASPI, J. B. JOVY C.
BERNABE,
BERNARD
L.
DAGCUTA,
ROGELIO
V.
GARCIA,
and
the
INTEGRATED BAR FOR THE
PHILIPPINES,
Petitioners,
- versus HON.
EXECUTIVE
SECRETARY EDUARDO R.
ERMITA,
Respondent.
x----------------------------------------------------------------------------------------x

DECISION
CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a


truly republican state. Even in the early history of
republican thought, however, it has been recognized that
the head of government may keep certain information
confidential in pursuit of the public interest. Explaining the
reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention
said: Decision, activity, secrecy, and dispatch will generally
characterize the proceedings of one man, in a much more
eminent degree than the proceedings of any greater
number; and in proportion as the number is increased,
these qualities will be diminished.[1]
History has been witness, however, to the fact that the
power to withhold information lends itself to abuse, hence,
the necessity to guard it zealously.
The present consolidated petitions for certiorari and
prohibition proffer that the President has abused such
power by issuing Executive Order No. 464 (E.O. 464) last
September 28, 2005. They thus pray for its declaration as
null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed
with the recognition that the issuance under review has
come from a co-equal branch of government, which thus
entitles it to a strong presumption of constitutionality. Once
the challenged order is found to be indeed violative of the
Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign
will of the Filipino people, must prevail over any issuance of
the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees,
conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and
offices including those employed in Government Owned and
Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the


Senate as a whole issued invitations to various officials of
the Executive Department for them to appear on September
29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation
with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was
sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and
other unlawful provisions of the contract covering the North
Rail Project.
The Senate Committee on National Defense and
Security likewise issued invitations [2] dated September 22,
2005 to the following officials of the AFP: the Commanding
General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo
M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP
Rear Admiral Tirso R. Danga; Chief of the Intelligence
Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA)
Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for
them to attend as resource persons in a public hearing
scheduled on September 28, 2005 on the following: (1)
Privilege Speech of Senator Aquilino Q. Pimentel Jr.,
delivered on June 6, 2005 entitled Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May
2005; (2) Privilege Speech of Senator Jinggoy E. Estrada
delivered on July 26, 2005 entitled The Philippines as the
Wire-Tapping Capital of the World; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled
Clear and Present Danger; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal
Resolution Directing the Committee on National Defense
and Security to Conduct an Inquiry, in Aid of Legislation,
and in the National Interest, on the Role of the Military in
the So-called Gloriagate Scandal; and (5) Senate Resolution
No. 295 filed by Senator Biazon Resolution Directing the
Committee on National Defense and Security to Conduct an
Inquiry, in Aid of Legislation, on the Wire-Tapping of the
President of the Philippines.

Also invited to the above-said hearing scheduled on


September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter [3] dated September 27,
2005, requested for its postponement due to a pressing
operational situation that demands [his] utmost personal
attention while some of the invited AFP officers are
currently attending to other urgent operational matters.
On September 28, 2005, Senate President Franklin M.
Drilon received from Executive Secretary Eduardo R.
Ermita a letter[4] dated September 27, 2005 respectfully
request[ing] for the postponement of the hearing [regarding
the NorthRail project] to which various officials of the
Executive Department have been invited in order to afford
said officials ample time and opportunity to study and
prepare for the various issues so that they may better
enlighten the Senate Committee on its investigation.
Senate President Drilon, however, wrote[5] Executive
Secretary Ermita that the Senators are unable to accede to
[his request] as it was sent belatedly and [a]ll preparations
and arrangements as well as notices to all resource persons
were completed [the previous] week.
Senate President Drilon likewise received on September 28,
2005 a letter[6] from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the
hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the
contract agreements relative to the project had been
secured.
On September 28, 2005, the President issued E.O.
464, ENSURING OBSERVANCE OF THE PRINCIPLE OF
SEPARATION OF POWERS, ADHERENCE TO THE RULE
ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE
RIGHTS
OF
PUBLIC
OFFICIALS
APPEARING
IN
LEGISLATIVE INQUIRIES IN AID OF LEGISLATION
UNDER THE CONSTITUTION, AND FOR OTHER
PURPOSES,[7] which, pursuant to Section 6 thereof, took
effect immediately. The salient provisions of the Order are
as follows:

SECTION 1. Appearance by Heads of Departments Before


Congress. In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on
the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall only be
conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on
executive privilege is fundamental to the operation of government
and rooted in the separation of powers under the Constitution
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public
Officials and Employees shall not use or divulge confidential or
classified information officially known to them by reason of their
office and not made available to the public to prejudice the public
interest.
Executive privilege covers all confidential or classified
information between the President and the public officers covered
by this executive order, including:
i.

ii.

Conversations and correspondence


between the President and the
public official covered by this
executive order (Almonte vs.
Vasquez G.R. No. 95367, 23 May
1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other
national security matters which in
the interest of national security
should not be divulged (Almonte
vs. Vasquez, G.R. No. 95367, 23
May 1995;Chavez v. Presidential
Commission on Good Government,
G.R. No. 130716, 9 December
1998).

iii.

iv.

v.

Information
between
intergovernment agencies prior to the
conclusion
of
treaties
and
executive agreements (Chavez v.
Presidential Commission on Good
Government, G.R. No. 130716, 9
December 1998);
Discussion in close-door Cabinet
meetings (Chavez v. Presidential
Commission on Good Government,
G.R. No. 130716, 9 December
1998);
Matters affecting national security
and public order (Chavez v. Public
Estates
Authority,
G.R.
No.
133250, 9 July 2002).

(b) Who are covered. The following are covered by this


executive order:
i.

ii.

iii.

iv.

v.

Senior
officials
of
executive
departments who in the judgment of
the department heads are covered by
the executive privilege;
Generals and flag officers of the Armed
Forces of the Philippines and such other
officers who in the judgment of the
Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers
with rank of chief superintendent or
higher and such other officers who in
the judgment of the Chief of the
PNP are covered by the executive
privilege;
Senior national security officials who in
the judgment of the National Security
Adviser are covered by the executive
privilege; and
Such
other
officers as
may
be
determined by the President.

SECTION 3. Appearance of Other Public Officials Before


Congress. All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to
the rule on executive privilege and respect for the rights of public

officials appearing in inquiries in aid of legislation. (Emphasis and


underscoring supplied)

Also on September 28, 2005, Senate President Drilon


received from Executive Secretary Ermita a copy of E.O.
464, and another letter[8] informing him that officials of the
Executive Department invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend
the same without the consent of the President, pursuant to
[E.O. 464] and that said officials have not secured the
required consent from the President. On even date which
was also the scheduled date of the hearing on the alleged
wiretapping, Gen. Senga sent a letter [9] to Senator Biazon,
Chairperson of the Committee on National Defense and
Security, informing him that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer
of the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval
from the President and that no approval has been granted
by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National
Defense and Security scheduled [on] 28 September 2005.
Despite the communications received from Executive
Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig.
Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military
personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan
were relieved from their military posts and were made to
face court martial proceedings.
As to the NorthRail project hearing scheduled on
September 29, 2005, Executive Secretary Ermita, citing
E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials: Light
Railway Transit Authority Administrator Melquiades Robles,
Metro Rail Transit Authority Administrator Roberto
Lastimoso, Department of Justice (DOJ) Chief State Counsel

Ricardo V. Perez, then Presidential Legal Counsel


Merceditas Gutierrez, Department of Transportation and
Communication
(DOTC)
Undersecretary
Guiling
Mamonding, DOTC Secretary Leandro Mendoza, Philippine
National Railways General Manager Jose Serase II,
Monetary Board Member Juanita Amatong, Bases
Conversion Development Authority Chairperson Gen.
Narciso Abaya and Secretary Romulo L. Neri. [10] NorthRail
President Cortes sent personal regrets likewise citing E.O.
464.[11]
On October 3, 2005, three petitions, docketed as G.R. Nos.
169659, 169660, and 169667, for certiorari and prohibition,
were filed before this Court challenging the constitutionality
of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan
Muna, House of Representatives Members Satur Ocampo,
Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador
and Teodoro Casino, COURAGE, an organization of
government employees, and Counsels for the Defense of
Liberties (CODAL), a group of lawyers dedicated to the
promotion of justice, democracy and peace, all claiming to
have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their
petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary
Ermita, in his capacity as Executive Secretary and alter-ego
of President Arroyo, be prohibited from imposing, and
threatening to impose sanctions on officials who appear
before
Congress
due
to
congressional
summons. Additionally, petitioners claim that E.O. 464
infringes on their rights and impedes them from fulfilling
their
respective
obligations.
Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a
political party entitled to participate in governance; Satur
Ocampo, et al. allege that E.O. 464 infringes on their rights
and duties as members of Congress to conduct investigation
in aid of legislation and conduct oversight functions in the
implementation of laws; COURAGE alleges that the tenure
of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O.
464 should they be summoned by Congress; and CODAL

alleges that its members have a sworn duty to uphold the


rule of law, and their rights to information and to
transparent governance are threatened by the imposition of
E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez,
claiming that his constitutional rights as a citizen, taxpayer
and law practitioner, are affected by the enforcement of
E.O. 464, prays in his petition that E.O. 464 be declared null
and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law
Groups, Inc.[12] (ALG), alleging that as a coalition of 17 legal
resource non-governmental organizations engaged in
developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as
an organization of citizens of the Philippines and a part of
the general public, it has legal standing to institute the
petition to enforce its constitutional right to information on
matters of public concern, a right which was denied to the
public by E.O. 464,[13] prays, that said order be declared null
and void for being unconstitutional and that respondent
Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the
Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has
already sustained the same with its continued enforcement
since it directly interferes with and impedes the valid
exercise of the Senates powers and functions and conceals
information of great public interest and concern, filed its
petition for certiorari and prohibition, docketed as G.R. No.
169777 and
prays
that
E.O.
464
be
declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political
party with members duly elected into the Philippine Senate
and House of Representatives, filed a similar petition for
certiorari
and
prohibition,
docketed
as G.R.
No.
169834, alleging that it is affected by the challenged E.O.
464 because it hampers its legislative agenda to be

implemented through its members in Congress, particularly


in the conduct of inquiries in aid of legislation and
transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative
branches of the government.
Meanwhile, by letter[14] dated February 6, 2006,
Senator Biazon reiterated his invitation to Gen. Senga for
him and other military officers to attend the hearing on the
alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter[15] dated February 8, 2006,
that [p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President
to allow [them] to appear before the public hearing and that
they will attend once [their] request is approved by the
President. As none of those invited appeared, the hearing on
February 10, 2006 was cancelled.[16]
In another investigation conducted jointly by the
Senate Committee on Agriculture and Food and the Blue
Ribbon Committee on the alleged mismanagement and use
of the fertilizer fund under the Ginintuang Masaganang
Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes,
Fertilizer and Pesticide Authority Executive Director Norlito
R. Gicana,[17] and those from the Department of Budget and
Management[18] having invoked E.O. 464.
In the budget hearings set by the Senate on February 8
and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,[19] DOJ Secretary Raul M.
Gonzalez[20] and Department of Interior and Local
Government
Undersecretary
Marius
P.
[21]
Corpus
communicated their inability to attend due to lack
of appropriate clearance from the President pursuant to
E.O. 464. During the February 13, 2005 budget hearing,
however, Secretary Bunye was allowed to attend by
Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the


incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the
Integrated Bar of the Philippines as the official organization
of all Philippine lawyers, all invoking their constitutional
right to be informed on matters of public interest, filed their
petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary
Restraining
Order
enjoining
respondents
from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on
February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse
of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of
general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28, Art.
III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21,
Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec.
16. Theprocedural issue of whether there is an actual case
or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties
were directed to submit their respective memoranda,
paying particular attention to the following propositions: (1)
that E.O. 464 is, on its face, unconstitutional; and (2)
assuming that it is not, it is unconstitutional as applied in
four instances, namely: (a) the so called Fertilizer scam; (b)
the NorthRail investigation (c) the Wiretapping activity of
the ISAFP; and (d) the investigation on the Venable
contract.[22]
Petitioners in G.R. No. 169660[23] and G.R. No.
169777[24] filed their memoranda on March 7, 2006, while
those in G.R. No. 169667[25] and G.R. No. 169834[26] filed
theirs the next day or on March 8, 2006. Petitioners in G.R.
No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after


their motion for extension to file memorandum [27] was
granted, subsequently filed a manifestation [28] dated March
14, 2006 that it would no longer file its memorandum in the
interest of having the issues resolved soonest, prompting
this Court to issue a Resolution reprimanding them. [29]
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.

VI, Sec. 21[30]


VI, Sec. 22[31]
VI, Sec. 1[32]
XI, Sec. 1[33]
III, Sec. 7[34]
III, Sec. 4[35]
XIII, Sec. 16 [36]
II, Sec. 28[37]

Respondents Executive Secretary Ermita et al., on the


other hand, pray in their consolidated memorandum [38] on
March 13, 2006 for the dismissal of the petitions for lack of
merit.
The Court synthesizes the issues to be resolved as
follows:
1. Whether E.O. 464 contravenes the power of inquiry
vested in Congress;
2. Whether E.O. 464 violates the right of the people to
information on matters of public concern; and
3. Whether respondents have committed grave abuse of
discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.

Essential requisites for judicial review


Before proceeding to resolve the issue of the
constitutionality of E.O. 464, ascertainment of whether the

requisites for a valid exercise of the Courts power of judicial


review are present is in order.
Like almost all powers conferred by the Constitution, the
power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the
act must have standing to challenge the validity of the
subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.[39]
Except with respect to the requisites of standing and
existence of an actual case or controversy where the
disagreement between the parties lies, discussion of the
rest of the requisites shall be omitted.

Standing
Respondents, through the Solicitor General, assert that the
allegations in G.R. Nos. 169659, 169660 and 169667 make
it clear that they, adverting to the non-appearance of
several officials of the executive department in the
investigations called by the different committees of the
Senate, were brought to vindicate the constitutional duty of
the Senate or its different committees to conduct inquiry in
aid of legislation or in the exercise of its oversight functions.
They maintain that Representatives Ocampo et al. have not
shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively
impaired by E.O. 464, there being no mention of any
investigation called by the House of Representatives or any
of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list
representing the marginalized and underrepresented, and
that of the other petitioner groups and individuals who
profess to have standing as advocates and defenders of the

Constitution, respondents contend that such interest falls


short of that required to confer standing on them as parties
injured-in-fact.[40]
Respecting petitioner Chavez, respondents contend
that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of
taxing or spending power.[41]
With regard to the petition filed by the Senate, respondents
argue that in the absence of a personal or direct injury by
reason of the issuance of E.O. 464, the Senate and its
individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic
Protectionism Association v. Ongpin[42] and Valmonte v.
Philippine Charity Sweepstakes Office,[43] respondents
assert that to be considered a proper party, one must have a
personal and substantial interest in the case, such that he
has sustained or will sustain direct injury due to the
enforcement of E.O. 464.[44]
That the Senate of the Philippines has a fundamental
right essential not only for intelligent public decisionmaking in a democratic system, but more especially for
sound legislation[45] is not disputed. E.O. 464, however,
allegedly stifles the ability of the members of Congress to
access information that is crucial to law-making. [46] Verily,
the Senate, including its individual members, has a
substantial and direct interest over the outcome of the
controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have
standing to maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action
which they claim infringes their prerogatives as legislators.
[47]

In the same vein, party-list representatives Satur


Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel
Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael
Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed

to sue to question the constitutionality of E.O. 464, the


absence of any claim that an investigation called by the
House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that
E.O. 464 infringes on their constitutional rights and duties
as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise
meets the standing requirement as it obtained three seats in
the House of Representatives in the 2004 elections and is,
therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and
underrepresented sectors, organizations and parties who
lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit
the nation.[48]
As Bayan Muna and Representatives Ocampo et al.
have the standing to file their petitions, passing on the
standing of their co-petitioners COURAGE and CODAL is
rendered unnecessary.[49]
In filing their respective petitions, Chavez, the ALG which
claims to be an organization of citizens, and the incumbent
members of the IBP Board of Governors and the IBP in
behalf of its lawyer members, [50] invoke their constitutional
right to information on matters of public concern, asserting
that the right to information, curtailed and violated by E.O.
464, is essential to the effective exercise of other
constitutional rights[51] and to the maintenance of the
balance of power among the three branches of the
government through the principle of checks and balances.[52]
It is well-settled that when suing as a citizen, the
interest of the petitioner in assailing the constitutionality of
laws, presidential decrees, orders, and other regulations,
must be direct and personal. In Franciso v. House of
Representatives,[53] this Court held that when the
proceeding involves the assertion of a public right, the mere

fact that he is a citizen satisfies the requirement of personal


interest.
As for petitioner PDP-Laban, it asseverates that it is clothed
with legal standing in view of the transcendental issues
raised in its petition which this Court needs to resolve in
order to avert a constitutional crisis. For it to be accorded
standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds
(that it is public) or other assets involved in the case, (2) the
presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any
party with a more direct and specific interest in raising the
questions being raised.[54] The first and last determinants
not being present as no public funds or assets are involved
and petitioners in G.R. Nos. 169777 and 169659 have direct
and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its
petition. Its allegation that E.O. 464 hampers its legislative
agenda is vague and uncertain, and at best is only a
generalized interest which it shares with the rest of the
political parties. Concrete injury, whether actual or
threatened, is that indispensable element of a dispute which
serves in part to cast it in a form traditionally capable of
judicial resolution.[55] In fine, PDP-Labans alleged interest as
a political party does not suffice to clothe it with legal
standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the
absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those
on the NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or
controversy, there being no showing that President Arroyo
has actually withheld her consent or prohibited the
appearance of the invited officials.[56] These officials, they
claim, merely communicated to the Senate that they have
not yet secured the consent of the President, not that the
President prohibited their attendance.[57] Specifically with

regard to the AFP officers who did not attend the hearing on
September 28, 2005, respondents claim that the instruction
not to attend without the Presidents consent was based on
its role as Commander-in-Chief of the Armed Forces, not on
E.O. 464.
Respondents thus conclude that the petitions merely rest on
an unfounded apprehension that the President will abuse its
power of preventing the appearance of officials before
Congress, and that such apprehension is not sufficient for
challenging the validity of E.O. 464.
The Court finds respondents assertion that the President
has not withheld her consent or prohibited the appearance
of the officials concerned immaterial in determining the
existence of an actual case or controversy insofar as E.O.
464 is concerned. For E.O. 464 does not require either a
deliberate withholding of consent or an express
prohibition issuing from the President in order to bar
officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.

Constitutionality of E.O. 464


E.O. 464, to the extent that it bars the appearance of
executive officials before Congress, deprives Congress of
the information in the possession of these officials. To
resolve the question of whether such withholding of
information violates the Constitution, consideration of the
general power of Congress to obtain information, otherwise
known as the power of inquiry, is in order.

The power of inquiry


The Congress power of inquiry is expressly recognized in
Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of
Representatives or any of its respective committees
may conduct inquiries in aid of legislation in
accordance with its duly published rules of
procedure. The rights of persons appearing in or
affected
by
such
inquiries
shall
be
respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII


of the 1973 Constitution except that, in the latter, it vests
the power of inquiry in the unicameral legislature
established
therein
the Batasang
Pambansa and
its
committees.
The 1935 Constitution did not contain a similar
provision. Nonetheless, in Arnault v. Nazareno,[58] a case
decided in 1950 under that Constitution, the Court already
recognized that the power of inquiry is inherent in the
power to legislate.
Arnault involved a Senate investigation of the reportedly
anomalous purchase of the Buenavista and Tambobong
Estates by the Rural Progress Administration. Arnault, who
was considered a leading witness in the controversy, was
called to testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates power to
punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution
expressly investing either House of Congress with
power to make investigations and exact testimony
to the end that it may exercise its legislative
functions advisedly and effectively, such power is so
far incidental to the legislative function as to be
implied. In
other
words, the
power
of
inquiry with process to enforce it is an
essential and appropriate auxiliary to the
legislative function. A legislative body cannot

legislate wisely or effectively in the absence of


information respecting the conditions which the
legislation is intended to affect or change; and
where the legislative body does not itself possess
the requisite information which is not infrequently
true recourse must be had to others who do possess
it. Experience has shown that mere requests for
such information are often unavailing, and also that
information
which
is volunteered is
not
always accurate or complete; so some means of
compulsion is essential to obtain what is
needed.[59] . . . (Emphasis and underscoring
supplied)

That this power of inquiry is broad enough to cover officials


of the executive branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is coextensive with the power to legislate.[60] The matters which
may be a proper subject of legislation and those which may
be a proper subject of investigation are one. It follows that
the operation of government, being a legitimate subject for
legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the
government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to
the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, also involved
government agencies created by Congress and officers
whose positions it is within the power of Congress to
regulate or even abolish.
Since Congress has authority to inquire into the operations
of the executive branch, it would be incongruous to hold
that the power of inquiry does not extend to executive
officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, with process
to enforce it, is grounded on the necessity of information in
the legislative process. If the information possessed by
executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of

reasoning, Congress has the right to that information and


the power to compel the disclosure thereof.
As evidenced by the American experience during the
so-called McCarthy era, however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It may
thus be subjected to judicial review pursuant to the Courts
certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,[61] the inquiry itself might not properly be in aid
of legislation, and thus beyond the constitutional power of
Congress. Such
inquiry
could
not
usurp
judicial
functions. Parenthetically, one possible way for Congress to
avoid such a result as occurred in Bengzon is to indicate in
its invitations to the public officials concerned, or to any
person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in
its invitations, along with the usual indication of the subject
of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of
legislation.

Section 21, Article VI likewise establishes crucial


safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in
accordance with the Senate or Houses duly published rules
of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published
rules of procedure.Section 21 also mandates that the rights
of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere
to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the
courts, upon the proper suit filed by the persons affected,
even if they belong to the executive branch. Nonetheless,
there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the

legislative power of inquiry might be established, resulting


in palpable violations of the rights guaranteed to members
of the executive department under the Bill of Rights. In such
instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses
may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there
are still recognized exemptions to the power of inquiry,
which exemptions fall under the rubric of executive
privilege.Since this term figures prominently in the
challenged order, it being mentioned in its provisions, its
preambular clauses,[62] and in its very title, a discussion of
executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase executive privilege is not new in this
jurisdiction. It has been used even prior to the promulgation
of the 1986 Constitution.[63] Being of American origin, it is
best understood in light of how it has been defined and used
in the legal literature of the United States.
Schwartz defines executive privilege as the power of the
Government to withhold information from the public, the
courts, and the Congress.[64] Similarly, Rozell defines it as
the right of the President and high-level executive branch
officers to withhold information from Congress, the courts,
and ultimately the public.[65]
Executive privilege is, nonetheless, not a clear or unitary
concept. [66] It has encompassed claims of varying kinds.
[67]
Tribe, in fact, comments that while it is customary to
employ the phrase executive privilege, it may be more
accurate to speak of executive privileges since presidential
refusals to furnish information may be actuated by any of at
least three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context
of either judicial or legislative investigations.
One variety of the privilege, Tribe explains, is the state
secrets privilege invoked by U.S. Presidents, beginning with

Washington, on the ground that the information is of such


nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers
privilege, or the privilege of the Government not to disclose
the identity of persons who furnish information of
violations of law to officers charged with the enforcement
of
that
law. Finally,
a generic
privilege for internal
deliberations has been said to attach to intragovernmental
documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which
governmental decisions and policies are formulated. [68]
Tribes comment is supported by the ruling in In re Sealed
Case, thus:
Since the beginnings of our nation, executive
officials have claimed a variety of privileges to
resist disclosure of information the confidentiality
of which they felt was crucial to fulfillment of
the unique role and responsibilities of the
executive branch of our government. Courts ruled
early that the executive had a right to withhold
documents that might reveal military or state
secrets. The courts have also granted the executive
a right to withhold the identity of government
informers in some circumstances and a qualified
right to withhold information related to pending
investigations. x x x[69] (Emphasis and underscoring
supplied)

The entry in Blacks Law Dictionary on executive privilege is


similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine
of separation of powers, exempts the executive
from disclosure requirements applicable to the
ordinary citizen or organization where such
exemption is necessary to the discharge of
highly
important
executive
responsibilities involved
in
maintaining
governmental operations, and extends not only
to military and diplomaticsecrets but
also
to documents integral to an appropriate exercise of
the executive domestic decisional and policy
making functions, that is, those documents
reflecting the frank expression necessary in intragovernmental
advisory
and
deliberative

communications.[70] (Emphasis
supplied)

and

underscoring

That a type of information is recognized as privileged does


not, however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of
a claim of privilege, the question that must be asked is not
only whether the requested information falls within one of
the traditional privileges, but also whether that privilege
should be honored in a given procedural setting.[71]
The leading case on executive privilege in the United States
is U.S. v. Nixon, [72] decided in 1974. In issue in that case was
the validity of President Nixons claim of executive privilege
against a subpoena issued by a district court requiring the
production of certain tapes and documents relating to the
Watergate investigations. The claim of privilege was based
on the Presidents general interest in the confidentiality of
his conversations and correspondence. The U.S. Court held
that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge
of a Presidents powers. The Court, nonetheless, rejected the
Presidents claim of privilege, ruling that the privilege must
be balanced against the public interest in the fair
administration of criminal justice. Notably, the Court was
careful to clarify that it was not there addressing the issue
of claims of privilege in a civil litigation or against
congressional demands for information.
Cases in the U.S. which involve claims of executive
privilege against Congress are rare.[73] Despite frequent
assertion of the privilege to deny information to Congress,
beginning with President Washingtons refusal to turn over
treaty negotiation records to the House of Representatives,
the U.S. Supreme Court has never adjudicated the issue.
[74]
However, the U.S. Court of Appeals for the District of
Columbia Circuit, in a case decided earlier in the same year
as Nixon, recognized the Presidents privilege over his
conversations
against
a
congressional
subpoena.
[75]
Anticipating the balancing approach adopted by the U.S.
Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against

the interest that would be served by disclosure to the


Committee. Ruling that the balance favored the President,
the Court declined to enforce the subpoena. [76]
In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez.
[77]
Almonte used the term in reference to the same privilege
subject ofNixon. It quoted the following portion of
the Nixon decision which explains the basis for the
privilege:
The
expectation
of
a
President
to
the confidentiality of his conversations and
correspondences,
like
the
claim
of
confidentiality of judicial deliberations, for
example, has all the values to which we accord
deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt
or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to
explore alternatives in the process of shaping
policies and making decisions and to do so in a way
many would be unwilling to express except
privately. These are the considerations justifying a
presumptive
privilege
for
Presidential
communications. The privilege is fundamental to
the operation of government and inextricably
rooted in the separation of powers under the
Constitution x x x (Emphasis and underscoring
supplied)

Almonte involved a subpoena duces tecum issued by the


Ombudsman against the therein petitioners. It did not
involve, as expressly stated in the decision, the right of the
people to information.[78] Nonetheless, the Court recognized
that there are certain types of information which the
government
may
withhold
from the
public,
thus
acknowledging, in substance if not in name, that executive
privilege may be claimed against citizens demands for
information.
In Chavez v. PCGG,[79] the Court held that this jurisdiction
recognizes the common law holding that there is a
governmental
privilege against public
disclosure with

respect to state secrets regarding military, diplomatic and


other national security matters.[80] The same case held that
closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,[81] the
Court ruled that the right to information does not extend to
matters recognized as privileged information under the
separation of powers,[82] by which the Court meant
Presidential
conversations,
correspondences,
and
discussions in closed-door Cabinet meetings. It also held
that information on military and diplomatic secrets and
those affecting national security, and information on
investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the
right to information.
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of
information of a
sensitive
character. While
executive
privilege is a constitutional concept, a claim thereof may be
valid or not depending on the ground invoked to justify it
and the context in which it is made. Noticeably absent is
any recognition that executive officials are exempt from the
duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor
of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require
the officials covered by them to secure the consent of the
President prior to appearing before Congress. There are
significant differences between the two provisions, however,
which constrain this Court to discuss the validity of these
provisions separately.

Section 1 specifically applies to department heads. It does


not, unlike Section 3, require a prior determination by any
official whether they are covered by E.O. 464. The President
herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not
made to depend on the department heads possession of
any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-vis Section 2, there is no reference to executive privilege at
all. Rather, the required prior consent under Section 1 is
grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour.
SECTION 22. The heads of departments may upon
their own initiative, with the consent of the
President, or upon the request of either House, as
the rules of each House shall provide, appear
before and be heard by such House on any matter
pertaining to their departments. Written questions
shall be submitted to the President of the Senate or
the Speaker of the House of Representatives at
least three days before their scheduled appearance.
Interpellations shall not be limited to written
questions, but may cover matters related thereto.
When the security of the State or the public interest
so requires and the President so states in writing,
the appearance shall be conducted in executive
session.

Determining the validity of Section 1 thus requires an


examination of the meaning of Section 22 of Article
VI. Section 22 which provides for the question hour must be
interpreted vis--vis Section 21 which provides for the power
of either House of Congress to conduct inquiries in aid of
legislation. As the following excerpt of the deliberations of
the Constitutional Commission shows, the framers were
aware that these two provisions involved distinct functions
of Congress.
MR. MAAMBONG. x x x When we amended Section
20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet
cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I
have a particular problem in this regard, Madam

President, because in our experience in the Regular


Batasang Pambansa as the Gentleman himself has
experienced in the interim Batasang Pambansa one
of the most competent inputs that we can put in our
committee deliberations, either in aid of legislation
or
in
congressional
investigations,
is
the
testimonies of Cabinet ministers. We usually invite
them, but if they do not come and it is a
congressional investigation, we usually issue
subpoenas.
I want to be clarified on a statement made by
Commissioner Suarez when he said that the
fact that the Cabinet ministers may refuse to
come to the House of Representatives or the
Senate [when
requested
under
Section
22] does not mean that they need not come
when they are invited or subpoenaed by the
committee of either House when it comes to
inquiries in aid of legislation or congressional
investigation. According
to
Commissioner
Suarez, that is allowed and their presence can
be had under Section 21. Does the gentleman
confirm this, Madam President?
MR.
DAVIDE. We
confirm
that,
Madam
President, because Section 20 refers only to
what
was
originally
the
Question
Hour, whereas,
Section
21
would
refer
specifically to inquiries in aid of legislation,
under which anybody for that matter, may be
summoned and if he refuses, he can be held in
contempt of the House.[83] (Emphasis and
underscoring supplied)

A distinction was thus made between inquiries in aid of


legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was
compulsory in inquiries in aid of legislation. The reference
to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of
department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of
the Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on
question hour from its original position as Section 20 in the

original draft down to Section 31, far from the provision on


inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as
Chairman of the Committee on Style] We now go,
Mr. Presiding Officer, to the Article on Legislative
and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his
reaction.
THE
PRESIDING
OFFICER
Jamir). Commissioner Davide is recognized.

(Mr.

MR. DAVIDE. Thank you, Mr. Presiding Officer. I


have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it
should follow Legislative Inquiries.

Republic of the Philippines


Supreme Court
Manila
EN BANC
PHARMACEUTICAL and HEALTH G.R. NO. 173034
CARE ASSOCIATION of the
PHILIPPINES,
Petitioner,
Present:
PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
HEALTH SECRETARY
FRANCISCO T. DUQUE III;
HEALTH UNDERSECRETARIES
DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA,
& DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE,

DR. DAVID J. LOZADA, AND


DR. NEMESIO T. GAKO, Promulgated:
Respondents. October 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best
nourishment for an infant is mother's milk. There is nothing greater than for
a mother to nurture her beloved child straight from her bosom. The ideal is,
of course, for each and every Filipino child to enjoy the unequaled benefits
of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of
Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012
entitled, Revised Implementing Rules and Regulations of Executive Order
No. 51, Otherwise Known as The Milk Code, Relevant International
Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains
provisions that are not constitutional and go beyond the law it is supposed to
implement.
Named as respondents are the Health Secretary, Undersecretaries, and
Assistant Secretaries of the Department of Health (DOH). For purposes of
herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said
executive agency.[1]
Executive Order No. 51 (Milk Code) was issued by President
Corazon Aquino on October 28, 1986 by virtue of the legislative powers
granted to the president under the Freedom Constitution. One of
the preambular clauses of the Milk Code states that the law seeks to give
effect to Article 11[2] of the International Code of Marketing
of BreastmilkSubstitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted
and protected, hence, it should be ensured that nutrition and health claims
are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights
of the Child. Article 24 of said instrument provides that State Parties should
take appropriate measures to diminish infant and child mortality, and ensure

that all segments of society, specially parents and children, are informed of
the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take
effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the
DOH acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the RIRR.[3]
On August 15, 2006, the Court issued a Resolution granting a TRO
enjoining respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for
Oral Arguments) datedJune 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the
Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not
constitutional;
2.1 Whether the RIRR is in accord with the provisions of
Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by
the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the
international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR
violate the due process clause and are in restraint of trade;
and
2.4 Whether Section 13 of the RIRR on Total Effect provides
sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef 2002 Global Strategy on Infant and
Young Child Feeding; and (3) various World Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.


The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the
real party-in-interest, the Court adopts the view enunciated in Executive
Secretary v. Court ofAppeals,[4] to wit:
The modern view is that an association has standing to complain
of injuries to its members. This view fuses the legal identity of an
association with that of its members. An association has standing
to file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has
standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the
respondent was organized x x x to act as the representative of any
individual, company, entity or association on matters related to the
manpower recruitment industry, and to perform other acts and
activities necessary to accomplish the purposes embodied
therein. The respondent is, thus, the appropriate party to assert
the rights of its members, because it and its members are in
every
practical
sense
identical. x x x The respondent
[association] is but the medium through which its individual
members seek to make more effective the expression of their
voices and the redress of their grievances. [5] (Emphasis
supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,


[6]
where the Court ruled that an association has the legal personality to
represent its members because the results of the case will affect their vital
interests.[7]
Herein petitioner's Amended Articles of Incorporation contains a similar
provision just like in Executive Secretary, that the association is formed to
represent directly or through approved representatives the pharmaceutical
and health care industry before the Philippine Government and any of its
agencies, the medical professions and the general public. [8]Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed
purpose of representing members who are part of the pharmaceutical and
health care industry.Petitioner is duly authorized [9] to take the appropriate
course of action to bring to the attention of government agencies and the
courts any grievance suffered by its members which are directly affected by

the RIRR. Petitioner, which is mandated by its Amended Articles of


Incorporation to represent the entire industry, would be remiss in its duties if
it fails to act on governmental action that would affect any of its industry
members, no matter how few or numerous they are. Hence, petitioner, whose
legal identity is deemed fused with its members, should be considered as a
real party-in-interest which stands to be benefited or injured by any
judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments
adverted to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the
Milk Code, thereby amending and expanding the coverage of said law. The
defense of the DOH is that the RIRR implements not only the Milk Code but
also various international instruments[10] regarding infant and young child
nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement
them through the RIRR.
The Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of
the Child; (2) The International Covenant on Economic, Social and Cultural
Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps
must be taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and
well-being of families, and ensure that women are provided with services
and nutrition in connection with pregnancy and lactation. Said instruments
do not contain specific provisions regarding the use or marketing
of breastmilk substitutes.
The international instruments that do have specific provisions
regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation.[11] The
transformation method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.[12]
Treaties
become
part
of
the
law
of
the
land
through transformation pursuant to Article VII, Section 21 of the

Constitution which provides that [n]o treaty or international agreement shall


be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate. Thus, treaties or conventional international law must
go through a process prescribed by the Constitution for it to be transformed
into municipal law that can be applied to domestic conflicts.[13]
The ICMBS and WHA Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate as required
under Section 21, Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk
Code. Consequently, it is the Milk Code that has the force and effect of law
in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is
well to emphasize at this point that the Code did not adopt the provision in
the ICMBS absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency
Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity
with all nations. (Emphasis supplied)

embodies the incorporation method.[14]


In Mijares v. Ranada,[15] the Court held thus:
[G]enerally accepted principles of international law, by virtue of
the incorporation clause of the Constitution, form part of the laws

of the land even if they do not derive from treaty obligations.


The classical formulation in international law sees
those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread, and
consistentpractice on the part of States; and a psychological
element known as the opinion juris sive necessitates (opinion as
to law or necessity). Implicit in the latter element is a belief that
the practice in question is rendered obligatory by the existence
of a rule of law requiring it.[16] (Emphasis supplied)
Generally accepted principles of international law refers to norms of general
or customary international law which are binding on all states, [17] i.e.,
renunciation of war as an instrument of national policy, the principle of
sovereign immunity,[18] a person's right to life, liberty and due process,
[19]
and pacta sunt servanda,[20] among others. The concept of generally
accepted principles of law has also been depicted in this wise:
Some legal scholars and judges look upon certain general
principles of law as a primary source of international law
because they have the character of jus rationale and are valid
through all kinds of human societies. (Judge Tanaka in his
dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of
international law because they are basic to legal systems
generally and hence part of the jus gentium. These principles,
he believes, are established by a process of reasoning based on the
common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine
whether the municipal law principle provides a just and acceptable
solution. x x x [21](Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:


Custom or customary international law means a general and
consistent practice of states followed by them from a sense of
legal obligation [opinio juris]. (Restatement) This statement
contains the two basic elements of custom: the material factor,
that is, how states behave, and the psychological or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the
actual behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.
The required duration can be either short or long. x x x

xxxx
Duration therefore is not the most important element. More
important is the consistency and the generality of the
practice. x x x
xxxx
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.[22] (Underscoring and
Emphasis supplied)

Clearly, customary international law is deemed incorporated into our


domestic system.[23]
WHA Resolutions have not been embodied in any local legislation. Have
they attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international
specialized agencies allied with the United Nations (UN) by virtue of Article
57,[24] in relation to Article 63[25] of the UN Charter. Under the 1946 WHO
Constitution, it is the WHA which determines the policies of the WHO,
[26]
and has the power to adopt regulations concerning advertising and
labeling of biological, pharmaceutical and similar products moving in
international commerce,[27] and to make recommendations to members with
respect to any matter within the competence of the Organization. [28] The
legal effect of its regulations, as opposed to recommendations, is quite
different.
Regulations, along with conventions and agreements, duly adopted by the
WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt
conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions
or agreements, which shall come into force for each Member
when accepted by it in accordance with its constitutional
processes.

Article 20. Each Member undertakes that it will, within


eighteen months after the adoption by the Health Assembly of a
convention or agreement, take action relative to the acceptance
of such convention or agreement. Each Member shall notify the
Director-General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will furnish a
statement of the reasons for non-acceptance. In case of
acceptance, each Member agrees to make an annual report to the
Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt
regulations concerning: (a) sanitary and quarantine requirements
and other procedures designed to prevent the international spread
of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to
diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international
commerce; (e) advertising and labeling of biological,
pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall
come into force for all Members after due notice has been given
of their adoption by the Health Assembly except for such
Members as may notify the Director-General of rejection or
reservations within the period stated in the notice. (Emphasis
supplied)
On the other hand, under Article 23, recommendations of the WHA do
not come into force for members, in the same way that conventions or
agreements under Article 19 and regulations under Article 21 come into
force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within
the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the


recommendation would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they carry moral and
political weight, as they constitute the judgment on a health issue of the
collective membership of the highest international body in the field of
health.[29] Even the ICMBS itself was adopted as a mere recommendation, as
WHA Resolution No. 34.22 states:

The Thirty-Fourth World Health Assembly x x x adopts, in the


sense of Article 23 of the Constitution, the International Code of
Marketing of Breastmilk Substitutes annexed to the present
resolution. (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:


In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the fourth
draft of the code, endorsed it, and unanimously recommended to
the Thirty-fourth World Health Assembly the text of a resolution
by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis
supplied)

The legal value of WHA Resolutions as recommendations is summarized in


Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken
with respect to recommendations made to it by the Organization,
and with respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent


WHA Resolutions urging member states to implement the
ICMBS are merely recommendatory and legally non-binding. Thus, unlike
what has been done with the ICMBS whereby the legislature enacted
most of the provisions into law which is the Milk Code, the subsequent
WHA Resolutions,[30] specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeeding up to 24 months, and
absolutely
prohibiting
advertisements
and
promotions
of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute soft law or nonbinding norms, principles and practices that influence state behavior.[31]
Soft law does not fall into any of the categories of international law set forth
in Article 38, Chapter III of the 1946 Statute of the International Court of
Justice.[32] It is, however, an expression of non-binding norms, principles,
and practices that influence state behavior.[33] Certain declarations and
resolutions of the UN General Assembly fall under this category.[34] The
most notable is the UN Declaration of Human Rights, which this Court has

enforced in various cases, specifically, Government of Hongkong Special


Administrative Region v. Olalia,[35] Mejoff v. Director of Prisons,
[36]
Mijares v. Raada[37] and Shangri-la International Hotel Management, Ltd.
v. Developers Group of Companies, Inc..[38]
The World Intellectual Property Organization (WIPO), a specialized agency
attached to the UN with the mandate to promote and protect intellectual
property worldwide, has resorted to soft law as a rapid means of norm
creation, in order to reflect and respond to the changing needs and demands
of its constituents.[39] Other international organizations which have resorted
to soft law include the International Labor Organization and the Food and
Agriculture Organization (in the form of the Codex Alimentarius).[40]
WHO has resorted to soft law. This was most evident at the time of the
Severe Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international
law binding on WHO member states, it provides an excellent
example of the power of "soft law" in international relations.
International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms,
principles, and practices that influence state behavior-"soft
law." WHO has during its existence generated many soft law
norms, creating a "soft law regime" in international
governance for public health.
The "soft law" SARS and IHR Resolutions represent significant
steps in laying the political groundwork for improved
international cooperation on infectious diseases. These resolutions
clearly define WHO member states' normative duty to cooperate
fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the
SARS epidemic, the duty is powerful politically for two reasons. First, the
SARS outbreak has taught the lesson that participating in, and enhancing,
international cooperation on infectious disease controls is in a country's
self-interest x x x if this warning is heeded, the "soft law" in the SARS
and IHR Resolution could inform the development of general and
consistent state practice on infectious disease surveillance and outbreak
response, perhaps crystallizing eventually into customary international
law on infectious disease prevention and control.[41]

In the Philippines, the executive department implemented certain measures


recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280
on February 2, 2004, delegating to various departments broad powers to

close down schools/establishments, conduct health surveillance and


monitoring, and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the
duty of a state to implement the IHR Resolution was still considered not
binding or enforceable, although said resolutions had great political
influence.
As previously discussed, for an international rule to be considered as
customary law, it must be established that such rule is being followed by
states because they consider it obligatory to comply with such rules
(opinio juris). Respondents have not presented any evidence to prove that
the WHA Resolutions, although signed by most of the member states, were
in fact enforced or practiced by at least a majority of the member states;
neither have respondents proven that any compliance by member states with
said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA
Resolutions are customary international law that may be deemed part of the
law of the land.
Consequently, legislation is necessary to transform the provisions of the
WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that can
be implemented by executive agencies without the need of a law enacted
by the legislature.
Second, the Court will determine whether the DOH may implement the
provisions of the WHA Resolutions by virtue of its powers and functions
under the Revised Administrative Code even in the absence of a domestic
law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987
provides that the DOH shall define the national health policy and
implement a national health plan within the framework of the government's
general policies and plans, and issue orders and regulations concerning
the implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and
other forms of promotion of breastmilk substitutes provided in some WHA
Resolutions has been adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child
feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically,
the Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start
at age six months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6) feeding in
exceptionally difficult circumstances. Indeed, the primacy of breastfeeding
for children is emphasized as a national health policy. However, nowhere in
A.O. No. 2005-0014 is it declared that as part of such health policy, the
advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding
cannot automatically be equated with a total ban on advertising
for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total
ban on the advertising and promotion of breastmilk substitutes, but instead,
specifically creates an IAC which will regulate said advertising and
promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the
constitutionally authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent
WHA Resolutions, can be validly implemented by the DOH through the
subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are
in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code,
petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but
the RIRR extended its coverage to young children or those from
ages two years old and beyond:
MILK CODE
WHEREAS, in order to ensure that
safe and adequate nutrition for
infants is provided, there is a need to
protect and promote breastfeeding and
to inform the public about the proper

RIRR
Section 2. Purpose These Revised Rules and
Regulations are hereby promulgated to ensure
the provision of safe and adequate nutritionfor
infants and young children by the promotion,
protection and support of breastfeeding and by

use
of breastmilk substitutes
and
supplements and related products
through adequate, consistent and
objective information and appropriate
regulation of the marketing and
distribution of the said substitutes,
supplements and related products;

ensuring
the
proper
use
of breastmilk substitutes, breastmilksupplements
and related products when these are medically
indicated and only when necessary, on the basis
of adequate information and through appropriate
marketing and distribution.

Section 5(ff). Young Child means a person from


SECTION 4(e). Infant means a person the age of more than twelve (12) months up to
falling within the age bracket of 0-12 the age of three (3) years (36 months).
months.

2. The Milk Code recognizes that infant formula may be a proper and
possible substitute for breastmilk in certain instances; but the RIRR
provides exclusive breastfeeding for infants from 0-6 months and
declares that there is no substitute nor replacement for breastmilk:
MILK CODE
WHEREAS, in order to ensure that safe
and adequate nutrition for infants is
provided, there is a need to protect and
promote breastfeeding and to inform the
public
about
the proper
use
of breastmilk substitutes and supplements
and related products through adequate,
consistent and objective information and
appropriate regulation of the marketing and
distribution of the said substitutes,
supplements and related products;

RIRR
Section 4. Declaration of Principles The
following are the underlying principles
from which the revised rules and
regulations are premised upon:
a. Exclusive
breastfeeding
infants from 0 to six (6) months.

is

for

b.
There
is no
substitute
replacement forbreastmilk.

or

3. The Milk Code only regulates and does not impose unreasonable
requirements for advertising and promotion; RIRR imposes an
absolute ban on such activities forbreastmilk substitutes intended
for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which
provides for a total effect in the promotion of products within the
scope of the Code, is vague:
MILK CODE
SECTION 6. The General Public and
Mothers.
(a) No advertising, promotion or other
marketing materials, whether written, audio
or visual, for products within the scope of
this Code shall be printed, published,
distributed, exhibited and broadcast unless
such materials are duly authorized and
approved
by
an
inter-agency
committee created herein pursuant to the

RIRR
Section 4. Declaration of Principles The
following are the underlying principles
from which the revised rules and
regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsorshipsof
infant
formula, breastmilk substitutes and other

applicable standards provided for in this related products are prohibited.


Code.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials
and
activities for breastmilksubstitutes
intended for infants and young children up
to twenty-four (24) months, shall be
allowed, because they tend to convey or
give subliminal messages or impressions
that
undermine breastmilk and
breastfeeding
or
otherwise
exaggerate breastmilk substitutes
and/or
replacements, as well as related products
covered within the scope of this Code.
Section 13. Total Effect - Promotion of
products within the scope of this Code must
be objective and should not equate or make
the product appear to be as good or equal
tobreastmilk or breastfeeding in the
advertising concept. It must not in any case
underminebreastmilk or breastfeeding. The
total effect should not directly or indirectly
suggest that buying their product would
produce better individuals, or resulting in
greater love, intelligence, ability, harmony
or in any manner bring better health to the
baby or other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in
advertising, promotional and marketing
materials:
a. Texts,
pictures,
illustrations
or
information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilksubstitutes
and
milk
supplements. In this connection, no pictures
of babies and children together with their
mothers, fathers, siblings, grandparents,
other relatives or caregivers (oryayas) shall
be used in any advertisements for infant
formula and breastmilk supplements;
b. The term humanized, maternalized, close
to mother's milk or similar words in
describingbreastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition claims

for products within the scope of the Code


are absolutely prohibited. For this purpose,
any phrase or words that connotes to
increase emotional, intellectual abilities of
the infant and young child and other like
phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in


the Milk Code:
MILK CODE
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be
designed to provide the necessary
information about the appropriate
use of the products, and in such a
way as not to discourage
breastfeeding.
(b) Each container shall have a clear,
conspicuous and easily readable and
understandable message in Pilipino
or English printed on it, or on a
label, which message can not
readily become separated from it,
and which shall include the
following points:
(i) the words Important Notice or
their equivalent;
(ii) a statement of the superiority
of breastfeeding;
(iii) a statement that the product
shall be used only on the advice of
a health worker as to the need for
its use and the proper methods of
use;and
(iv) instructions for
appropriate
preparation, and a warning against
the health hazards of inappropriate
preparation.

RIRR
Section 26. Content Each container/label
shall contain such message, in both Filipino
and English languages, and which message
cannot be readily separated therefrom,
relative the following points:
(a) The words or phrase Important Notice
or Government Warning or their
equivalent;
(b) A statement of the superiority of
breastfeeding;
(c) A statement that there is no substitute
forbreastmilk;
(d) A statement that the product shall be
used only on the advice of a health
worker as to the need for its use and
the proper methods of use;
(e) Instructions for appropriate prepara-tion,
and a warning against the health
hazards
of
inappropriate
preparation;and
(f) The health hazards of unnecessary or
improper use of infant formula and
other related products including
information that powdered infant
formula may contain pathogenic
microorganisms and must be
prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant


formula to health professionals; the RIRR totally prohibits such
activity:
MILK CODE
SECTION 7. Health Care System.
(b) No facility of the health care system
shall be used for the purpose of promoting
infant formula or other products within the
scope of this Code. This Code does not,
however, preclude the dissemination of

RIRR
Section 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information,
Education
and

information to health professionals as Communication (IEC) materials on


provided in Section 8(b).
breastfeeding, holding of or participating as
speakers in classes or seminars for women
SECTION 8. Health Workers. and children activities and to avoid the use
(b) Information provided by manufacturers of these venues to market their brands or
and distributors to health professionals company names.
regarding products within the scope of this
Code shall be restricted to scientific and SECTION 16. All health and nutrition
factual matters and such information shall claims for products within the scope of the
not imply or create a belief that bottle- Code are absolutely prohibited. For this
feeding is equivalent or superior to purpose, any phrase or words that
breastfeeding. It shall also include the connotes to increase emotional, intellectual
information specified in Section 5(b).
abilities of the infant and young child and
other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to


extend assistance in research and continuing education of health
professionals; RIRR absolutely forbids the same.
MILK CODE
SECTION 8. Health Workers
(e) Manufacturers and distributors of
products within the scope of this Code may
assist in the research, scholarships and
continuing
education,
of
health
professionals,in accordance with the rules
and regulations promulgated by the
Ministry of Health.

RIRR
Section 4. Declaration of Principles
The following are the underlying principles
from which the revised rules and
regulations are premised upon:
i. Milk companies, and their
representatives, should not form
part of any policymaking body or
entity in relation to the advancement
ofbreasfeeding.
SECTION
22. No
manufacturer,
distributor, or representatives of products
covered by the Code shall be allowed to
conduct or be involved in any activity on
breastfeeding promotion, education and
production of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or participating as
speakers in classes or seminars for women
and children activitiesand to avoid the use
of these venues to market their brands or
company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely


prohibits it.
MILK CODE
SECTION 6. The General Public and
Mothers.
(f) Nothing herein contained shall prevent
donations
from
manufacturers
and
distributors of products within the scope of
this Code upon request by or with the
approval of the Ministry of Health.

RIRR
Section 51. Donations Within the Scope
of This Code - Donations of products,
materials, defined and covered under the
Milk Code and these implementing rules
and regulations, shall be strictly prohibited.
Section 52. Other Donations By Milk
Companies Not Covered by this Code. Donations of products, equipments, and the
like, not otherwise falling within the scope
of this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency
Committee (IAC), which shall determine
whether such donation be accepted or
otherwise.

8. The RIRR provides for administrative sanctions not imposed by the


Milk Code.
MILK CODE

RIRR
Section
46. Administrative
Sanctions. The following administrative
sanctions shall be imposed upon any
person, juridical or natural, found to have
violated the provisions of the Code and its
implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a
minimum
of
Ten
Thousand
(P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on
the gravity and extent of the
violation, including the recall of the
offending product;
rd
c) 3 violation Administrative Fine of a
minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos,
depending on the gravity and extent
of the violation, and in addition
thereto, the recall of the offending
product, and suspension of the
Certificate of Product Registration
(CPR);
d) 4th violation Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred

(P500,000.00) Thousand Pesos,


depending on the gravity and extent
of the violation; and in addition
thereto, the recall of the product,
revocation of the CPR, suspension of
the License to Operate (LTO) for
one year;
e) 5th and succeeding repeated violations
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of
the offending product, cancellation of
the CPR, revocation of the License to
Operate (LTO) of the company
concerned, including the blacklisting
of the company to be furnished the
Department
of
Budget
and
Management (DBM) and the
Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thou-sand
Five Hundred (P2,500.00) Pesos per
day shall be made for every day the
violation continues after having
received the order from the IAC or
other such appropriate body,
notifying
and
penalizing
the
company for the infraction.
For purposes of determining whether or not
there is repeated violation, each product
violation belonging or owned by a
company, including those of their
subsidiaries, are deemed to be violations of
the concerned milk company and shall not
be based on the specific violating product
alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.
1.
Petitioner is mistaken in its claim that the Milk Code's
coverage is limited only to children 0-12 months old. Section 3 of the Milk
Code states:
SECTION 3. Scope of the Code The Code applies to the
marketing, and practices related thereto, of the following
products: breastmilk substitutes, including infant formula; other
milk products, foods and beverages, including bottle-fed
complementary foods, when marketed or otherwise represented to
be suitable, with or without modification, for use as a partial or

total replacement ofbreastmilk; feeding bottles and teats. It also


applies to their quality and availability, and to information
concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the
child but on the kind of product being marketed to the public. The law
treats infant formula, bottle-fed complementary food, and breastmilk
substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula
as a breastmilk substitute x x x to satisfy the normal nutritional requirements
of infants up to between four to six months of age, and adapted to their
physiological characteristics; while under Section 4(b), bottle-fed
complementary food refers to any food, whether manufactured or locally
prepared, suitable as a complement to breastmilk or infant formula, when
either becomes insufficient to satisfy the nutritional requirements of
the infant. An infant under Section 4(e) is a person falling within the age
bracket 0-12 months. It is the nourishment of this group of infants or
children aged 0-12 months that is sought to be promoted and protected by
the Milk Code.
But there is another target group. Breastmilk substitute is defined
under Section 4(a) as any food being marketed or otherwise presented as a
partial or total replacement for breastmilk, whether or not suitable for that
purpose. This section conspicuously lacks reference to any particular
age-group of children. Hence, the provision of the Milk Code cannot be
considered exclusive for children aged 0-12 months. In other
words, breastmilk substitutes may also be intended for young children more
than 12 months of age. Therefore, by regulating breastmilk substitutes, the
Milk Code also intends to protect and promote the nourishment of children
more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of
the Milk Code as provided in Section 3, then it can be subject to regulation
pursuant to said law, even if the product is to be used by children aged over
12 months.
There is, therefore, nothing objectionable with Sections 2 [42] and 5(ff)
[43]
of the RIRR.
2.
It is also incorrect for petitioner to say that the RIRR, unlike
the Milk Code, does not recognize that breastmilk substitutes may be a
proper and possible substitute forbreastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must
be considered and construed together. As held in De Luna v. Pascual,[44] [t]he
particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts and in order to
produce a harmonious whole.
Section 7 of the RIRR provides that when medically indicated and
only when necessary, the use of breastmilk substitutes is proper if based
on complete and updated information. Section 8 of the RIRR also states that
information and educational materials should include information on the
proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in
certain cases, the use of breastmilk substitutes may be proper.
3.
The Court shall ascertain the merits of allegations 3 [45] and
4[46] together as they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising
regulations under the RIRR are valid, it is important to deal first with the
nature, purpose, and depth of the regulatory powers of the DOH, as defined
in general under the 1987 Administrative Code,[47] and as delegated
in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and
certain other administrative agencies) in exercise of police powers delegated
to it. The sheer span of jurisprudence on that matter precludes the need to
further discuss it..[48] However, health information, particularly advertising
materials on apparently non-toxic products likebreastmilk substitutes and
supplements, is a relatively new area for regulation by the DOH.[49]
As early as the 1917 Revised Administrative Code of the Philippine
Islands,[50] health information was already within the ambit of the regulatory
powers of the predecessor of DOH.[51] Section 938 thereof charged it with
the duty to protect the health of the people, and vested it with such powers
as (g) the dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper care of
infants and the methods of preventing and combating dangerous
communicable diseases.
Seventy years later, the 1987 Administrative Code tasked respondent
DOH to carry out the state policy pronounced under Section 15, Article II of
the 1987 Constitution, which is to protect and promote the right to health of

the people and instill health consciousness among them.[52] To that


end, it was granted under Section 3 of the Administrative Code the power to
(6) propagate health information and educate the population on important
health, medical and environmental matters which have health implications.
[53]

When it comes to information regarding nutrition of infants and


young children, however, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH) the power to ensure that
there is adequate, consistent and objective information on breastfeeding and
use of breastmilk substitutes, supplements and related products; and the
power to control such information. These are expressly provided for in
Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring


xxxx
(b) The Ministry of Health shall be principally responsible
for the implementation and enforcement of the provisions
of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as are
necessary or proper for the implementation of this Code
and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may
be necessary for or incidental to the attainment of the
purposes and objectives of this Code.

SECTION 5. Information and Education


(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use by
families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--vis breastmilk substitutes, supplement and
related products, in the following manner:
SECTION 5. x x x

(b) Informational and educational materials, whether written,


audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points:
(1) the benefits and superiority of breastfeeding; (2)
maternal nutrition, and the preparation for and maintenance
of breastfeeding; (3) the negative effect on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such
materials contain information about the use of infant
formula, they shall include the social and financial
implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper
use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which
may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual
matters, and such information shall not imply or create
a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information
specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide
the necessary information about the appropriate use of the
products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term humanized, maternalized or similar terms shall not
be used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information


and to whom such information may be disseminated under Sections 6
through 9 of the Milk Code[54]to ensure that the information that would reach
pregnant women, mothers of infants, and health professionals and workers in
the health care system is restricted to scientific and factual matters and

shall not imply or create a belief that bottlefeeding is equivalent or superior


to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk
Code
to control information
regarding breastmilk vis-avis breastmilk substitutes is not absolute as the power to control does not
encompass the power to absolutely prohibit the advertising, marketing, and
promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally
indicate that the control over information given to the DOH is not absolute
and that absolute prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate
marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to
contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and by
ensuring
the
proper
use
of breastmilk substitutes
and breastmilk supplements when these are necessary, on the basis
of adequate information and through appropriate marketing and
distribution.

b) Section 3 which specifically states that the Code applies to the


marketing of and practices related to breastmilk substitutes, including infant
formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that
objective and consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any picture or text
which may idealize the use ofbreastmilk substitutes and should include
information on the health hazards of unnecessary or improper use of said
product;
e) Section 6(a) in relation to Section 12(a) which creates and
empowers the IAC to review and examine advertising, promotion, and other
marketing materials;
f) Section 8(b) which states that milk companies may
provide information to health professionals but such information should be

restricted to factual and scientific matters and shall not imply or create a
belief that bottlefeeding is equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not
contain information that would discourage breastfeeding and idealize the use
of infant formula.
It is in this context that the Court now examines the assailed
provisions of the RIRR regarding labeling and advertising.
Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR
contain some labeling requirements, specifically: a) that there be a statement
that there is no substitute to breastmilk; and b) that there be a statement
that powdered infant formula may contain pathogenic microorganisms and
must be prepared and used appropriately. Section 16[57]of the RIRR prohibits
all health and nutrition claims for products within the scope of the Milk
Code, such as claims of increased emotional and intellectual abilities of the
infant and young child.
These requirements and limitations are consistent with the provisions
of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers xxxx
(b) Information provided by manufacturers and distributors
to health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual matters,
andsuch information shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5.
[58]
(Emphasissupplied)

and Section 10(d)[59] which bars the use on containers and labels of the terms
humanized, maternalized, or similar terms.
These provisions of the Milk Code expressly forbid information that would
imply or create a belief that there is any milk product equivalent to
breastmilk or which is humanized or maternalized, as such information
would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information
given to health workers regarding breastmilk substitutes, not to containers
and labels thereof.However, such restrictive application of Section 8(b) will
result in the absurd situation in which milk companies and distributors are

forbidden to claim to health workers that their products are substitutes or


equivalents of breastmilk, and yet be allowed to display on the containers
and labels of their products the exact opposite message. That askewed
interpretation of the Milk Code is precisely what Section 5(a) thereof seeks
to avoid by mandating that all information regarding breastmilk vis-avis breastmilk substitutes beconsistent, at the same time giving the
government control over planning, provision, design, and dissemination of
information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to
state that the product offered is not a substitute for breastmilk, is a
reasonable means of enforcing Section 8(b) of the Milk Code and deterring
circumvention of the protection and promotion of breastfeeding as embodied
in Section 2[60] of the Milk Code.
Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written,
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points:
x x x (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared.
When such materials contain information about the use of
infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate
foods or feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not
use any picture or text which may idealize the use of
breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for
the buyers thereof. The buyers of breastmilk substitutes are mothers of
infants, and Section 26 of the RIRR merely adds a fair warning about the
likelihood of pathogenic microorganisms being present in infant formula and
other related products when these are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to contaminations and there is as yet no technology

that allows production of powdered infant formula that eliminates all forms
of contamination.[62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with
Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-avis breastmilk substitutes and supplements and related products cannot be
questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials,
whether written, audio or visual, for products within the scope of
this Code shall be printed, published, distributed, exhibited and
broadcast unless such materials are duly authorized and approved
by an inter-agency committee created herein pursuant to the
applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional


and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an interagency committee composed of the following members is hereby
created:
Minister of Health -------------------------------------------- Chairman
Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member
The members may designate their duly authorized representative
to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or
other marketing materials, whether written, audio or visual,
on products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions


from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or
other marketing materials, whether written, audio or visual,
on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for
the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are
necessary or proper for the implementation of Section
6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:


SECTION
11. Prohibition No
advertising,
promotions,
sponsorships,
or
marketing
materials
and
activities
for breastmilk substitutes intended for infants and young children
up to twenty-four (24) months, shall be allowed, because they
tend to convey or give subliminal messages or impressions that
undermine breastmilk and
breastfeeding
or
otherwise
exaggerate breastmilksubstitutes and/or replacements, as well as
related products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and
activities for breastmilk substitutes in line with the RIRRs declaration of
principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant
formula, breastmilk substitutes and other related products are
prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only
the regulatory authority given to the IAC but also imposed absolute
prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the
Milk Code in Section 6 thereof for prior approval by IAC of all advertising,
marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC,
and repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:


xxxx
x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained
that what AO 2006-12 provides is not an absolute prohibition
because Section 11 while it states and it is entitled prohibition it
states that no advertising, promotion, sponsorship or marketing
materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed
because this is the standard they tend to convey or give subliminal
messages
or
impression
undermine
that breastmilk or
breastfeeding x x x.
We have to read Section 11 together with the other Sections
because the other Section, Section 12, provides for the inter
agency committee that is empowered to process and evaluate all
the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and
manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken
together with the provision on the Inter-Agency Committee that
processes and evaluates because there may be some information
dissemination
that
are
straight
forward
information
dissemination. What the AO 2006 is trying to prevent is any
material that will undermine the practice of breastfeeding, Your
Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has
authority or power to promulgate Rules and Regulations regarding
the
Advertising,
Promotion
and
Marketing
of BreastmilkSubstitutes?
SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency


Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped
its rule making authority when it totally banned advertising and
promotion under Section 11 prescribed the total effect rule as well
as the content of materials under Section 13 and 15 of the rules
and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no
total absolute ban. Second, the Inter-Agency Committee is under
the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no
absolute ban on advertising of breastmilk substitutes in the
Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on
advertising of breastmilk substitutes intended for children two (2)
years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the InterAgency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated
earlier, which are- they should not undermine breastfeeding, Your
Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in
relation with the other Sections, particularly 12 and 13 and 15,

Your Honor, because it is recognized that the Inter-Agency


Committee has that power to evaluate promotional materials, Your
Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two (2)
years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a
prohibition, however, we take exceptions and standards have been
set. One of which is that, the Inter-Agency Committee can allow if
the advertising and promotions will not undermine breastmilk and
breastfeeding, Your Honor.[63]

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and
regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision
must be related to Section 6 thereof which in turn provides that the rules and
regulations must be pursuant to the applicable standards provided for in this
Code. Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code,
which, at the risk of being repetitious, and for easy reference, are quoted
hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether
written, audio, or visual, dealing with the feeding of infants
and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following
points: (1) the
benefits
and
superiority
of
breastfeeding; (2) maternal nutrition, and the preparation
for and maintenance of breastfeeding;(3) the negative effect
on
breastfeeding
of
introducing
partial bottlefeeding; (4) the difficulty of reversing the
decision not to breastfeed; and (5) where needed, the proper
use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information
about the use of infant formula, they shall include the social
and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular,

the health hazards of unnecessary or improper use of infant


formula and otherbreastmilk substitutes. Such materials
shall not use any picture or text which may idealize the use
of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors
to health professionals regarding products within the scope
of this Code shall be restricted to scientific and factual
mattersand such information shall not imply or create a
belief that bottle feeding is equivalent or superior to
breastfeeding. It shall also include the information specified
in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide
the necessary information about the appropriate use of the
products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and
easily readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily
becomeseparated from it, and which shall include the following
points:
(i) the words Important Notice or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice
of a health worker as to the need for its use and the proper
methods of use; and
(iv) instructions for appropriate preparation, and a warning
against the health hazards of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as


the principal implementing agency for the enforcement of the provisions of
the Code. In relation to such responsibility of the DOH, Section 5(a) of the
Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for
use by families and those involved in the field of infant
nutrition. This responsibility shall cover the planning,
provision, design and dissemination of information, and the
control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into


operational terms the standards set forth in Sections 5, 8, and 10 of the
Milk Code, by which the IAC shall screen advertising, promotional, or
other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for
Section 13 in the RIRR which reads as follows:
SECTION 13. Total Effect - Promotion of products within the
scope of this Code must be objective and should not equate or
make the product appear to be as good or equal to breastmilk or
breastfeeding in the advertising concept. It must not in any case
undermine breastmilk or breastfeeding. The total effect should not
directly or indirectly suggest that buying their product would
produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health
to the baby or other such exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on
advertising, promotion, and marketing. Through that single provision, the
DOH exercises control over the information content of advertising,
promotional
and
marketing
materials
on breastmilk vis-avis breastmilk substitutes, supplements and other related products. It also
sets a viable standard against which the IAC may screen such materials
before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court
held:
x x x [T]his Court had, in the past, accepted as sufficient standards
the following: public interest, justice and equity, public
convenience and welfare, and simplicity, economy and welfare. [65]

In this case, correct information as to infant feeding and nutrition is


infused with public interest and welfare.
4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b)[66] of the Milk Code,
in relation to Section 8(b)[67] of the same Code, allows dissemination of
information to health professionals but suchinformation is restricted to
scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not


prohibit the giving of information to health professionals on scientific
and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in
activities for the promotion, education and production of Information,
Education and Communication (IEC) materials regarding breastfeeding that
are intended for women and children. Said provision cannot be construed
to encompass even thedissemination of information to health
professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e) [68] of the Milk Code
permits milk manufacturers and distributors to extend assistance in research
and in the continuing education of health professionals, while Sections 22
and 32 of the RIRR absolutely forbid the same. Petitioner also assails
Section 4(i)[69] of the RIRR prohibiting milk manufacturers' and distributors'
participation in any policymaking body in relation to the advancement of
breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their
representatives should not form part of any policymaking body or entity in
relation to the advancement of breastfeeding. The Court finds nothing in said
provisions which contravenes the Milk Code. Note that under Section 12(b)
of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the provisions of
said Code. It is entirely up to the DOH to decide which entities to call upon
or allow to bepart of policymaking bodies on breastfeeding. Therefore,
the RIRR's prohibition on milk companies participation in any policymaking
body in relation to the advancement of breastfeeding is in accord with the
Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR
prohibits milk companies from giving reasearch assistance and continuing
education to health professionals. Section 22[70] of the RIRR does not
pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education
for women and children. Nothing in Section 22 of the RIRR prohibits milk
companies from giving assistance for research or continuing education to
health professionals; hence, petitioner's argument against this particular
provision must be struck down.
It is Sections 9[71] and 10[72] of the RIRR which govern research
assistance. Said sections of the RIRR provide that research assistance for
health workers and researchers may be allowed upon approval of an

ethics committee, and with certain disclosure requirements imposed on


the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how
such research or educational assistance may be given by milk companies or
under what conditions health workers may accept the assistance. Thus,
Sections 9 and 10 of the RIRR imposing limitations on the kind of research
done or extent of assistance given by milk companies are completely in
accord with the Milk Code.
Petitioner complains that Section 32 [73] of the RIRR prohibits milk
companies from giving assistance, support, logistics or training to health
workers. This provision is within the prerogative given to the DOH under
Section 8(e)[74] of the Milk Code, which provides that manufacturers and
distributors of breastmilk substitutes may assist in researches, scholarships
and the continuing education, of health professionals in accordance with the
rules and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also
consistent with the Milk Code. Section 6(f) of the Milk Code provides that
donations may be
made
by
manufacturers
and
distributors
of breastmilk substitutes upon the request or with the approval of the
DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept
such donations. The DOH then appropriately exercised its discretion through
Section 51[75] of the RIRR which sets forth its policy not to request
or approve donations
from
manufacturers
and
distributors
of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section
52 of the RIRR that any donation from milk companies not covered by the
Code should be coursed through the IAC which shall determine whether
such donation should be accepted or refused. As reasoned out by
respondents, the DOH is not mandated by the Milk Code to accept
donations. For that matter, no person or entity can be forced to accept a
donation. There is, therefore, no real inconsistency between the RIRR and
the law because the Milk Code does not prohibit the DOH from refusing
donations.
7. With regard to Section 46 of the RIRR providing for administrative
sanctions that are not found in the Milk Code, the Court upholds petitioner's
objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air


Lines, Inc.[76] is misplaced. The glaring difference in said case and the
present case before the Court is that, in the Civil Aeronautics Board, the
Civil Aeronautics Administration (CAA) was expressly granted by the law
(R.A. No. 776) the power to impose fines and civil penalties, while the
Civil Aeronautics Board (CAB) was granted by the same law the power to
review on appeal the order or decision of the CAA and to determine whether
to impose, remit, mitigate, increase or compromise such fine and civil
penalties. Thus, the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the
Philippines, Inc.,[77] the Court upheld the Department of Energy (DOE)
Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The
circular provided for fines for the commission of prohibited acts. The Court
found that nothing in the circular contravened the law because the DOE was
expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or
penalties.
In the present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to fix or
impose such fines, the DOH cannot provide for those fines in the RIRR. In
this regard, the DOH again exceeded its authority by providing for such
fines or sanctions in Section 46 of the RIRR. Said provision is, therefore,
null and void.
The DOH is not left without any means to enforce its rules and
regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to cause
the prosecution of the violators of this Code and other pertinent laws on
products covered by this Code. Section 13 of the Milk Code provides for the
penalties to be imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or
the rules and regulations issued pursuant to this Code shall,
upon conviction, be punished by a penalty of two (2) months to
one (1) year imprisonment or a fine of not less than One Thousand
Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a
juridical person, the chairman of the Board of Directors, the

president, general manager, or the partners and/or the persons


directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any
government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the practice of
their profession or occupation, or for the pursuit of their business,
may, upon recommendation of the Ministry of Health, be
suspended or revoked in the event of repeated violations of this
Code, or of the rules and regulations issued pursuant to this
Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that
are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules
and regulations or parts thereof inconsistent with these revised
rules and implementing regulations are hereby repealed or
modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only
orders, issuances and rules and regulations. Thus, said provision is valid as it
is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rulemaking power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and
the
Constitution,
and
subject
to
the
doctrine
of
non[78]
delegability and separability of powers. Such express grant of rulemaking power necessarily includes the power to amend, revise, alter, or
repeal the same.[79] This is to allow administrative agencies flexibility in
formulating and adjusting the details and manner by which they are to
implement the provisions of a law,[80] in order to make it more responsive to
the times. Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are
declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of
the DOH to promulgate and in contravention of the Milk Code and,
therefore, null and void. The rest of the provisions of the RIRR are in
consonance with the Milk Code.
Lastly, petitioner makes a catch-all allegation that:

x x x [T]he questioned RIRR sought to be implemented by the


Respondents is unnecessary and oppressive, and is offensive to
the due process clause of the Constitution, insofar as the same
is in restraint of trade and because a provision therein is
inadequate to provide the public with a comprehensible basis to
determine whether or not they have committed a violation. [81]
(Emphasis supplied)

Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,
[88]
and 52[89] as the provisions that suppress the trade of milk and, thus,
violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected
to some form of regulation for the public good. Public interest must be
upheld over business interests.[90] In Pest Management Association of
the Philippines v. Fertilizer and Pesticide Authority,[91] it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut
Desiccators v. Philippine Coconut Authority, despite the fact that
our present Constitution enshrines free enterprise as a
policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare.
There can be no question that the unregulated use or proliferation
of pesticides would be hazardous to our environment. Thus, in
the aforecited case, the Court declared that free enterprise does
not call for removal of protective regulations. xx x It must be
clearly explained and proven by competent evidence just
exactly how such protective regulation would result in the
restraint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk
manufacturers participation in any policymaking body (Section 4(i)), classes
and seminars for women and children (Section 22); the giving of assistance,
support and logistics or training (Section 32); and the giving of donations
(Section
52)
would
unreasonably
hamper
the
trade
ofbreastmilk substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk substitutes. Petitioner
failed to demonstrate that the aforementioned provisions of the RIRR are
unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the
term milk company, to wit:

SECTION 5 x x x. (w) Milk Company shall refer to the owner,


manufacturer, distributor of infant formula, follow-up milk, milk

formula, milk supplement, breastmilk substitute or replacement, or


by any other description of such nature, including their
representatives who promote or otherwise advance their
commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:


(d) Distributor means a person, corporation or any other
entity in the public or private sector engaged in the
business (whether directly or indirectly) of marketing at
the wholesale or retail level a product within the scope
of this Code. A primary distributor is a manufacturer's
sales agent, representative, national distributor or
broker.
xxxx
(j)

Manufacturer means a corporation or other entity in


the public or private sector engaged in the business or
function (whether directly or indirectly or through an
agent or and entity controlled by or under contract with
it) of manufacturing a products within the scope of this
Code.

Notably, the definition in the RIRR merely merged together under the term
milk company the entities defined separately under the Milk Code as
distributor and manufacturer.The RIRR also enumerated in Section 5(w) the
products manufactured or distributed by an entity that would qualify it as a
milk company, whereas in the Milk Code, what is used is the phrase
products within the scope of this Code. Those are the only differences
between the definitions given in the Milk Code and the definition as restated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to
both manufacturers and distributors, the Court sees no harm in the RIRR
providing for just one term to encompass both entities. The
definition of milk company in the RIRR and the definitions of distributor
and manufacturer provided for under the Milk Code are practically the
same.
The Court is not convinced that the definition of milk company provided in
the RIRR would bring about any change in the treatment or regulation of
distributors and manufacturers of breastmilk substitutes, as defined under
the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code,
constituting reasonable regulation of an industry which affects public health
and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11
and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOIDfor being ultra vires. The Department of Health
and respondents are PROHIBITED from implementing said provisions.
The
Temporary
Restraining
Order
issued
on August
15,
2006 is LIFTED insofar as the rest of the provisions of Administrative
Order No. 2006-0012 is concerned.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice

SECOND DIVISION

[G.R. No. 139325. April 12, 2005]

PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B.


NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C.
LAMANGAN in their behalf and on behalf of the Class
Plaintiffs in Class Action No. MDL 840, United States
District Court of Hawaii, petitioners, vs. HON. SANTIAGO
JAVIER RANADA, in his capacity as Presiding Judge of
Branch 137, Regional Trial Court, Makati City, and the
ESTATE OF FERDINAND E. MARCOS, through its court
appointed legal representatives in Class Action MDL 840,
United States District Court of Hawaii, namely: Imelda R.
Marcos and Ferdinand Marcos, Jr., respondents.
DECISION
TINGA, J.:

Our martial law experience bore strange unwanted fruits, and we have yet to
finish weeding out its bitter crop. While the restoration of freedom and the
fundamental structures and processes of democracy have been much lauded,
according to a significant number, the changes, however, have not sufficiently
healed the colossal damage wrought under the oppressive conditions of the
martial law period. The cries of justice for the tortured, the murdered, and
the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded,
yet the dispensation of the appropriate relief due them cannot be extended
through the same caprice or whim that characterized the ill-wind of martial rule.
The damage done was not merely personal but institutional, and the proper
rebuke to the iniquitous past has to involve the award of reparations due within
the confines of the restored rule of law.
The petitioners in this case are prominent victims of human rights
violations who, deprived of the opportunity to directly confront the man who
once held absolute rule over this country, have chosen to do battle instead with
the earthly representative, his estate. The clash has been for now interrupted by
a trial court ruling, seemingly comported to legal logic, that required the
petitioners to pay a whopping filing fee of over Four Hundred Seventy-Two Million
Pesos (P472,000,000.00) in order that they be able to enforce a judgment
awarded them by a foreign court. There is an understandable temptation to cast
the struggle within the simplistic confines of a morality tale, and to employ shortcuts to arrive at what might seem the desirable solution. But easy, reflexive resort
to the equity principle all too often leads to a result that may be morally correct,
but legally wrong.
[1]

Nonetheless, the application of the legal principles involved in this case will
comfort those who maintain that our substantive and procedural laws, for all their
perceived ambiguity and susceptibility to myriad interpretations, are inherently
fair and just. The relief sought by the petitioners is expressly mandated by our
laws and conforms to established legal principles. The granting of this petition for

certiorari is warranted in order to correct the legally infirm and unabashedly


unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint was
filed with the United States District Court (US District Court), District of Hawaii,
against the Estate of former Philippine President Ferdinand E. Marcos (Marcos
Estate). The action was brought forth by ten Filipino citizens who each alleged
having suffered human rights abuses such as arbitrary detention, torture and
rape in the hands of police or military forces during the Marcos regime. The
Alien Tort Act was invoked as basis for the US District Courts jurisdiction over the
complaint, as it involved a suit by aliens for tortious violations of international law.
These plaintiffs brought the action on their own behalf and on behalf of a class
of similarly situated individuals, particularly consisting of all current civilian
citizens of the Philippines, their heirs and beneficiaries, who between 1972 and
1987 were tortured, summarily executed or had disappeared while in the custody
of military or paramilitary groups. Plaintiffs alleged that the class consisted of
approximately ten thousand (10,000) members; hence, joinder of all these
persons was impracticable.
[2]

[3]

[4]

The institution of a class action suit was warranted under Rule 23(a) and (b)
(1)(B) of the US Federal Rules of Civil Procedure, the provisions of which were
invoked by the plaintiffs. Subsequently, the US District Court certified the case as
a class action and created three (3) sub-classes of torture, summary execution
and disappearance victims. Trial ensued, and subsequently a jury rendered a
verdict and an award of compensatory and exemplary damages in favor of the
plaintiff class. Then, on 3 February 1995, the US District Court, presided by
Judge Manuel L. Real, rendered a Final Judgment (Final Judgment) awarding
the plaintiff class a total of One Billion Nine Hundred Sixty Four Million Five
Thousand Eight Hundred Fifty Nine Dollars and Ninety Cents
($1,964,005,859.90). The Final Judgment was eventually affirmed by the US
Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December
1996.
[5]

[6]

On 20 May 1997, the present petitioners filed Complaint with the Regional
Trial Court, City of Makati (Makati RTC) for the enforcement of the Final
Judgment. They alleged that they are members of the plaintiff class in whose
favor the US District Court awarded damages. They argued that since the
Marcos Estate failed to file a petition for certiorari with the US Supreme Court
after the Ninth Circuit Court of Appeals had affirmed the Final Judgment, the
decision of the US District Court had become final and executory, and hence
should be recognized and enforced in the Philippines, pursuant to Section 50,
Rule 39 of the Rules of Court then in force.
[7]

[8]

On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising,


among others, the non-payment of the correct filing fees. It alleged that
petitioners had only paid Four Hundred Ten Pesos (P410.00) as docket and filing
fees, notwithstanding the fact that they sought to enforce a monetary amount of
damages in the amount of over Two and a Quarter Billion US Dollars (US$2.25
Billion). The Marcos Estate cited Supreme Court Circular No. 7, pertaining to the
proper computation and payment of docket fees. In response, the petitioners
claimed that an action for the enforcement of a foreign judgment is not capable of
pecuniary estimation; hence, a filing fee of only Four Hundred Ten Pesos
(P410.00) was proper, pursuant to Section 7(c) of Rule 141.
[9]

On 9 September 1998, respondent Judge Santiago Javier Ranada of the


Makati RTC issued the subject Order dismissing the complaint without prejudice.
Respondent judge opined that contrary to the petitioners submission, the subject
matter of the complaint was indeed capable of pecuniary estimation, as it
[10]

involved a judgment rendered by a foreign court ordering the payment of definite


sums of money, allowing for easy determination of the value of the foreign
judgment. On that score, Section 7(a) of Rule 141 of the Rules of Civil Procedure
would find application, and the RTC estimated the proper amount of filing fees
was approximately Four Hundred Seventy Two Million Pesos, which obviously
had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge
Ranada denied in an Order dated 28 July 1999. From this denial, petitioners filed
a Petition for Certiorariunder Rule 65 assailing the twin orders of respondent
judge. They prayed for the annulment of the questioned orders, and an order
directing the reinstatement of Civil Case No. 97-1052 and the conduct of
appropriate proceedings thereon.
[11]

Petitioners submit that their action is incapable of pecuniary estimation as the


subject matter of the suit is the enforcement of a foreign judgment, and not an
action for the collection of a sum of money or recovery of damages. They also
point out that to require the class plaintiffs to pay Four Hundred Seventy Two
Million Pesos (P472,000,000.00) in filing fees would negate and render inutile the
liberal construction ordained by the Rules of Court, as required by Section 6,
Rule 1 of the Rules of Civil Procedure, particularly the inexpensive disposition of
every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of the
Constitution, which provides that Free access to the courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to any person by
reason of poverty, a mandate which is essentially defeated by the required
exorbitant filing fee. The adjudicated amount of the filing fee, as arrived at by the
RTC, was characterized as indisputably unfair, inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to intervene in this
case. It urged that the petition be granted and a judgment rendered, ordering
the enforcement and execution of the District Court judgment in accordance with
Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For the CHR, the
Makati RTC erred in interpreting the action for the execution of a foreign
judgment as a new case, in violation of the principle that once a case has been
decided between the same parties in one country on the same issue with finality,
it can no longer be relitigated again in another country. The CHR likewise
invokes the principle of comity, and of vested rights.
[12]

[13]

The Courts disposition on the issue of filing fees will prove a useful
jurisprudential guidepost for courts confronted with actions enforcing foreign
judgments, particularly those lodged against an estate. There is no basis for the
issuance a limited pro hac vice ruling based on the special circumstances of the
petitioners as victims of martial law, or on the emotionally-charged allegation of
human rights abuses.
An examination of Rule 141 of the Rules of Court readily evinces that the
respondent judge ignored the clear letter of the law when he concluded that the
filing fee be computed based on the total sum claimed or the stated value of the
property in litigation.
In dismissing the complaint, the respondent judge relied on Section 7(a),
Rule 141 as basis for the computation of the filing fee of over P472 Million. The
provision states:
SEC. 7. Clerk of Regional Trial Court.-

(a) For filing an action or a permissive counterclaim or money claim


against an estate not based on judgment, or for filing with leave of court a
third-party, fourth-party, etc., complaint, or a complaint in intervention, and for all
clerical services in the same time, if the total sum claimed, exclusive of interest,
or the started value of the property in litigation, is:
1. Less than P 100,00.00 P 500.00
2. P 100,000.00 or more - P 800.00
but less than P 150,000.00
3. P 150,000.00 or more but - P 1,000.00
less than P 200,000.00
4. P 200,000.00 or more but
less than P 250,000.00 - P 1,500.00
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00
6. P 300,000.00 or more but
not more than P 400,000.00 - P 2,000.00
7. P 350,000.00 or more but not
more than P400,000.00 - P 2,250.00
8. For each P 1,000.00 in excess of
P 400,000.00 - P 10.00
...
(Emphasis supplied)
Obviously, the above-quoted provision covers, on one hand, ordinary actions,
permissive counterclaims, third-party, etc. complaints and complaints-ininterventions, and on the other, money claims against estates which are not
based on judgment. Thus, the relevant question for purposes of the present
petition is whether the action filed with the lower court is a money claim against
an estate not based on judgment.
Petitioners complaint may have been lodged against an estate, but it is
clearly based on a judgment, the Final Judgment of the US District Court. The
provision does not make any distinction between a local judgment and a foreign
judgment, and where the law does not distinguish, we shall not distinguish.
A reading of Section 7 in its entirety reveals several instances wherein the
filing fee is computed on the basis of the amount of the relief sought, or on the
value of the property in litigation. The filing fee for requests for extrajudicial
foreclosure of mortgage is based on the amount of indebtedness or the
mortgagees claim. In special proceedings involving properties such as for the
allowance of wills, the filing fee is again based on the value of the property. The
aforecited rules evidently have no application to petitioners complaint.
[14]

[15]

Petitioners rely on Section 7(b), particularly the proviso on actions where the
value of the subject matter cannot be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.(b) For filing
1. Actions where the value
of the subject matter
cannot be estimated --- P 600.00

2. Special civil actions except


judicial foreclosure which
shall be governed by
paragraph (a) above --- P 600.00
3. All other actions not
involving property --- P 600.00
In a real action, the assessed value of the property, or if there is none, the estimated value,
thereof shall be alleged by the claimant and shall be the basis in computing the fees.
It is worth noting that the provision also provides that in real actions, the
assessed value or estimated value of the property shall be alleged by the
claimant and shall be the basis in computing the fees. Yet again, this provision
does not apply in the case at bar. A real action is one where the plaintiff seeks
the recovery of real property or an action affecting title to or recovery of
possession of real property. Neither the complaint nor the award of damages
adjudicated by the US District Court involves any real property of the Marcos
Estate.
[16]

Thus, respondent judge was in clear and serious error when he concluded
that the filing fees should be computed on the basis of the schematic table of
Section 7(a), as the action involved pertains to a claim against an estate based
on judgment. What provision, if any, then should apply in determining the filing
fees for an action to enforce a foreign judgment?
To resolve this question, a proper understanding is required on the nature
and effects of a foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have established a
usage among civilized states by which final judgments of foreign courts of
competent jurisdiction are reciprocally respected and rendered efficacious under
certain conditions that may vary in different countries. This principle was
prominently affirmed in the leading American case ofHilton v. Guyot and
expressly recognized in our jurisprudence beginning with Ingenholl v. Walter E.
Olsen & Co. The conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally contained in Section 311 of the
Code of Civil Procedure, which was taken from the California Code of Civil
Procedure which, in turn, was derived from the California Act of March 11, 1872.
Remarkably, the procedural rule now outlined in Section 48, Rule 39 of the
Rules of Civil Procedure has remained unchanged down to the last word in
nearly a century. Section 48 states:
[17]

[18]

[19]

[20]

SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title
to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a
right as between the parties and their successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an action in
rem and one in personam. For an action in rem, the foreign judgment is deemed

conclusive upon the title to the thing, while in an action in personam, the foreign
judgment is presumptive, and not conclusive, of a right as between the parties
and their successors in interest by a subsequent title. However, in both cases,
the foreign judgment is susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the party, collusion, fraud, or clear
mistake of law or fact. Thus, the party aggrieved by the foreign judgment is
entitled to defend against the enforcement of such decision in the local forum. It
is essential that there should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to properly determine its
efficacy.
[21]

[22]

[23]

[24]

[25]

It is clear then that it is usually necessary for an action to be filed in order to


enforce a foreign judgment , even if such judgment has conclusive effect as in
the case of in rem actions, if only for the purpose of allowing the losing party an
opportunity to challenge the foreign judgment, and in order for the court to
properly determine its efficacy. Consequently, the party attacking a foreign
judgment has the burden of overcoming the presumption of its validity.
[26]

[27]

[28]

The rules are silent as to what initiatory procedure must be undertaken in


order to enforce a foreign judgment in the Philippines. But there is no question
that the filing of a civil complaint is an appropriate measure for such purpose. A
civil action is one by which a party sues another for the enforcement or protection
of a right, and clearly an action to enforce a foreign judgment is in essence a
vindication of a right prescinding either from a conclusive judgment upon title or
the presumptive evidence of a right. Absent perhaps a statutory grant of
jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must
be brought before the regular courts.
[29]

[30]

[31]

There are distinctions, nuanced but discernible, between the cause of action
arising from the enforcement of a foreign judgment, and that arising from the
facts or allegations that occasioned the foreign judgment. They may pertain to
the same set of facts, but there is an essential difference in the right-duty
correlatives that are sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action emanates from the violation of
the right of the complainant through the act or omission of the respondent. On
the other hand, in a complaint for the enforcement of a foreign judgment
awarding damages from the same tortfeasor, for the violation of the same right
through the same manner of action, the cause of action derives not from the
tortious act but from the foreign judgment itself.
More importantly, the matters for proof are different. Using the above
example, the complainant will have to establish before the court the tortious act
or omission committed by the tortfeasor, who in turn is allowed to rebut these
factual allegations or prove extenuating circumstances. Extensive litigation is
thus conducted on the facts, and from there the right to and amount of damages
are assessed. On the other hand, in an action to enforce a foreign judgment, the
matter left for proof is the foreign judgment itself, and not the facts from which it
prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the service of personal
notice, collusion, fraud, or mistake of fact or law. The limitations on review is in
consonance with a strong and pervasive policy in all legal systems to limit
repetitive litigation on claims and issues. Otherwise known as the policy of
preclusion, it seeks to protect party expectations resulting from previous litigation,
to safeguard against the harassment of defendants, to insure that the task of
courts not be increased by never-ending litigation of the same disputes, and in a
larger sense to promote what Lord Coke in the Ferrers Case of 1599 stated to be
[32]

the goal of all law: rest and quietness. If every judgment of a foreign court were
reviewable on the merits, the plaintiff would be forced back on his/her original
cause of action, rendering immaterial the previously concluded litigation.
[33]

[34]

Petitioners appreciate this distinction, and rely upon it to support the


proposition that the subject matter of the complaintthe enforcement of a foreign
judgmentis incapable of pecuniary estimation. Admittedly the proposition, as it
applies in this case, is counter-intuitive, and thus deserves strict scrutiny. For in
all practical intents and purposes, the matter at hand is capable of pecuniary
estimation, down to the last cent. In the assailed Order, the respondent judge
pounced upon this point without equivocation:
The Rules use the term where the value of the subject matter cannot be estimated. The
subject matter of the present case is the judgment rendered by the foreign court ordering
defendant to pay plaintiffs definite sums of money, as and for compensatory damages.
The Court finds that the value of the foreign judgment can be estimated; indeed, it can
even be easily determined. The Court is not minded to distinguish between the
enforcement of a judgment and the amount of said judgment, and separate the two, for
purposes of determining the correct filing fees. Similarly, a plaintiff suing on promissory
note for P1 million cannot be allowed to pay only P400 filing fees (sic), on the reasoning
that the subject matter of his suit is not the P1 million, but the enforcement of the
promissory note, and that the value of such enforcement cannot be estimated.
[35]

The jurisprudential standard in gauging whether the subject matter of an


action is capable of pecuniary estimation is well-entrenched. The Marcos Estate
cites Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals, which
ruled:
[I]n determining whether an action is one the subject matter of which is not capable of
pecuniary estimation this Court has adopted the criterion of first ascertaining the nature
of the principal action or remedy sought. If it is primarily for the recovery of a sum of
money, the claim is considered capable of pecuniary estimation, and whether jurisdiction
is in the municipal courts or in the courts of first instance would depend on the amount of
the claim. However, where the basic issue is something other than the right to recover a
sum of money, where the money claim is purely incidental to, or a consequence of, the
principal relief sought, this Court has considered such actions as cases where the subject
of the litigation may not be estimated in terms of money, and are cognizable exclusively
by courts of first instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes
in Lapitan v. Scandia, from which the rule in Singsong and Raymundo actually
derives, but which incorporates this additional nuance omitted in the latter cases:
[36]

xxx However, where the basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a consequence of, the principal
relief sought, like in suits to have the defendant perform his part of the contract
(specific performance) and in actions for support, or for annulment of judgment or
to foreclose a mortgage, this Court has considered such actions as cases where the
subject of the litigation may not be estimated in terms of money, and are cognizable
exclusively by courts of first instance.
[37]

Petitioners go on to add that among the actions the Court has recognized as
being incapable of pecuniary estimation include legality of conveyances and
money deposits, validity of a mortgage, the right to support, validity of
documents, rescission of contracts, specific performance, and validity or
[38]

[41]

[39]

[42]

[40]

[43]

annulment of judgments. It is urged that an action for enforcement of a foreign


judgment belongs to the same class.
[44]

This is an intriguing argument, but ultimately it is self-evident that while the


subject matter of the action is undoubtedly the enforcement of a foreign
judgment, the effect of a providential award would be the adjudication of a sum of
money. Perhaps in theory, such an action is primarily for the enforcement of the
foreign judgment, but there is a certain obtuseness to that sort of argument since
there is no denying that the enforcement of the foreign judgment will necessarily
result in the award of a definite sum of money.
But before we insist upon this conclusion past beyond the point of reckoning,
we must examine its possible ramifications. Petitioners raise the point that a
declaration that an action for enforcement of foreign judgment may be capable of
pecuniary estimation might lead to an instance wherein a first level court such as
the Municipal Trial Court would have jurisdiction to enforce a foreign judgment.
But under the statute defining the jurisdiction of first level courts, B.P. 129, such
courts are not vested with jurisdiction over actions for the enforcement of foreign
judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper
cases, where the value of the personal property, estate, or amount of the
demand does not exceed One hundred thousand pesos (P100,000.00) or, in
Metro Manila where such personal property, estate, or amount of the demand
does not exceed Two hundred thousand pesos (P200,000.00) exclusive of
interest damages of whatever kind, attorney's fees, litigation expenses, and
costs, the amount of which must be specifically alleged: Provided, That where
there are several claims or causes of action between the same or different
parties, embodied in the same complaint, the amount of the demand shall be
the totality of the claims in all the causes of action, irrespective of whether the
causes of action arose out of the same or different transactions;
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful
detainer: Provided, That when, in such cases, the defendant raises the question
of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed value of
the property or interest therein does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila, where such assessed value
does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property shall be determined by the
assessed value of the adjacent lots.[45]

Section 33 of B.P. 129 refers to instances wherein the cause of action or


subject matter pertains to an assertion of rights and interests over property or a
sum of money. But as earlier pointed out, the subject matter of an action to
enforce a foreign judgment is the foreign judgment itself, and the cause of action
arising from the adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant complaint
for enforcement of a foreign judgment, even if capable of pecuniary estimation,
would fall under the jurisdiction of the Regional Trial Courts, thus negating the

fears of the petitioners. Indeed, an examination of the provision indicates that it


can be relied upon as jurisdictional basis with respect to actions for enforcement
of foreign judgments, provided that no other court or office is vested jurisdiction
over such complaint:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasijudicial functions.
Thus, we are comfortable in asserting the obvious, that the complaint to
enforce the US District Court judgment is one capable of pecuniary estimation.
But at the same time, it is also an action based on judgment against an estate,
thus placing it beyond the ambit of Section 7(a) of Rule 141. What provision then
governs the proper computation of the filing fees over the instant complaint? For
this case and other similarly situated instances, we find that it is covered by
Section 7(b)(3), involving as it does, other actions not involving property.
Notably, the amount paid as docket fees by the petitioners on the premise
that it was an action incapable of pecuniary estimation corresponds to the same
amount required for other actions not involving property. The petitioners thus paid
the correct amount of filing fees, and it was a grave abuse of discretion for
respondent judge to have applied instead a clearly inapplicable rule and
dismissed the complaint.
There is another consideration of supreme relevance in this case, one which
should disabuse the notion that the doctrine affirmed in this decision is grounded
solely on the letter of the procedural rule. We earlier adverted to the the
internationally recognized policy of preclusion, as well as the principles of
comity, utility and convenience of nations as the basis for the evolution of the
rule calling for the recognition and enforcement of foreign judgments. The US
Supreme Court in Hilton v. Guyot relied heavily on the concept of comity, as
especially derived from the landmark treatise of Justice Story in his
Commentaries on the Conflict of Laws of 1834. Yet the notion of comity has
since been criticized as one of dim contours or suffering from a number of
fallacies. Other conceptual bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern doctrine of obligation.
[46]

[47]

[48]

[49]

[50]

[51]

[52]

There have been attempts to codify through treaties or multilateral


agreements the standards for the recognition and enforcement of foreign
judgments, but these have not borne fruition. The members of the European
Common Market accede to the Judgments Convention, signed in 1978, which
eliminates as to participating countries all of such obstacles to recognition such
as reciprocity and rvision au fond. The most ambitious of these attempts is
the Convention on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters, prepared in 1966 by the Hague Conference of
International Law. While it has not received the ratifications needed to have it
take effect, it is recognized as representing current scholarly thought on the
topic. Neither the Philippines nor the United States are signatories to the
Convention.
[53]

[54]

[55]

[56]

Yet even if there is no unanimity as to the applicable theory behind the


recognition and enforcement of foreign judgments or a universal treaty rendering

it obligatory force, there is consensus that the viability of such recognition and
enforcement is essential. Steiner and Vagts note:
. . . The notion of unconnected bodies of national law on private international law, each
following a quite separate path, is not one conducive to the growth of a transnational
community encouraging travel and commerce among its members. There is a
contemporary resurgence of writing stressing the identity or similarity of the values that
systems of public and private international law seek to further a community interest in
common, or at least reasonable, rules on these matters in national legal systems. And such
generic principles as reciprocity play an important role in both fields.
[57]

Salonga, whose treatise on private international law is of worldwide renown,


points out:
Whatever be the theory as to the basis for recognizing foreign judgments, there can be
little dispute that the end is to protect the reasonable expectations and demands of the
parties. Where the parties have submitted a matter for adjudication in the court of one
state, and proceedings there are not tainted with irregularity, they may fairly be expected
to submit, within the state or elsewhere, to the enforcement of the judgment issued by the
court.
[58]

There is also consensus as to the requisites for recognition of a foreign


judgment and the defenses against the enforcement thereof. As earlier
discussed, the exceptions enumerated in Section 48, Rule 39 have remain
unchanged since the time they were adapted in this jurisdiction from long
standing American rules. The requisites and exceptions as delineated under
Section 48 are but a restatement of generally accepted principles of international
law. Section 98 of The Restatement, Second, Conflict of Laws, states that a valid
judgment rendered in a foreign nation after a fair trial in a contested proceeding
will be recognized in the United States, and on its face, the term valid brings into
play requirements such notions as valid jurisdiction over the subject matter and
parties. Similarly, the notion that fraud or collusion may preclude the
enforcement of a foreign judgment finds affirmation with foreign jurisprudence
and commentators, as well as the doctrine that the foreign judgment must not
constitute a clear mistake of law or fact. And finally, it has been recognized that
public policy as a defense to the recognition of judgments serves as an umbrella
for a variety of concerns in international practice which may lead to a denial of
recognition.
[59]

[60]

[61]

[62]

The viability of the public policy defense against the enforcement of a foreign
judgment has been recognized in this jurisdiction. This defense allows for the
application of local standards in reviewing the foreign judgment, especially when
such judgment creates only a presumptive right, as it does in cases wherein the
judgment is against a person. The defense is also recognized within the
international sphere, as many civil law nations adhere to a broad public policy
exception which may result in a denial of recognition when the foreign court, in
the light of the choice-of-law rules of the recognizing court, applied the wrong law
to the case. The public policy defense can safeguard against possible abuses
to the easy resort to offshore litigation if it can be demonstrated that the original
claim is noxious to our constitutional values.
[63]

[64]

[65]

There is no obligatory rule derived from treaties or conventions that requires


the Philippines to recognize foreign judgments, or allow a procedure for the
enforcement thereof. However, generally accepted principles of international law,
by virtue of the incorporation clause of the Constitution, form part of the laws of
the land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted as binding
[66]

result from the combination two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.
[67]

While the definite conceptual parameters of the recognition and enforcement


of foreign judgments have not been authoritatively established, the Court can
assert with certainty that such an undertaking is among those generally accepted
principles of international law. As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for such recognition and
enforcement, albeit subject to limitations of varying degrees. The fact that there is
no binding universal treaty governing the practice is not indicative of a
widespread rejection of the principle, but only a disagreement as to the
imposable specific rules governing the procedure for recognition and
enforcement.
[68]

Aside from the widespread practice, it is indubitable that the procedure for
recognition and enforcement is embodied in the rules of law, whether statutory or
jurisprudential, adopted in various foreign jurisdictions. In the Philippines, this is
evidenced primarily by Section 48, Rule 39 of the Rules of Court which has
existed in its current form since the early 1900s. Certainly, the Philippine legal
system has long ago accepted into its jurisprudence and procedural rules the
viability of an action for enforcement of foreign judgment, as well as the
requisites for such valid enforcement, as derived from internationally accepted
doctrines. Again, there may be distinctions as to the rules adopted by each
particular state, but they all prescind from the premise that there is a rule of law
obliging states to allow for, however generally, the recognition and enforcement
of a foreign judgment. The bare principle, to our mind, has attained the status
of opinio juris in international practice.
[69]

This is a significant proposition, as it acknowledges that the procedure and


requisites outlined in Section 48, Rule 39 derive their efficacy not merely from the
procedural rule, but by virtue of the incorporation clause of the Constitution.
Rules of procedure are promulgated by the Supreme Court, and could very well
be abrogated or revised by the high court itself. Yet the Supreme Court is
obliged, as are all State components, to obey the laws of the land, including
generally accepted principles of international law which form part thereof, such
as those ensuring the qualified recognition and enforcement of foreign
judgments.
[70]

[71]

Thus, relative to the enforcement of foreign judgments in the Philippines, it


emerges that there is a general right recognized within our body of laws, and
affirmed by the Constitution, to seek recognition and enforcement of foreign
judgments, as well as a right to defend against such enforcement on the grounds
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in this
country merely due to an exhorbitant assessment of docket fees is alien to
generally accepted practices and principles in international law. Indeed, there are
grave concerns in conditioning the amount of the filing fee on the pecuniary
award or the value of the property subject of the foreign decision. Such pecuniary
award will almost certainly be in foreign denomination, computed in accordance
with the applicable laws and standards of the forum. The vagaries of inflation,
as well as the relative low-income capacity of the Filipino, to date may very well
translate into an award virtually unenforceable in this country, despite its integral
validity, if the docket fees for the enforcement thereof were predicated on the
[72]

amount of the award sought to be enforced. The theory adopted by respondent


judge and the Marcos Estate may even lead to absurdities, such as if applied to
an award involving real property situated in places such as the United States or
Scandinavia where real property values are inexorably high. We cannot very well
require that the filing fee be computed based on the value of the foreign property
as determined by the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids
unreasonableness, as it recognizes that the subject matter of an action for
enforcement of a foreign judgment is the foreign judgment itself, and not the
right-duty correlatives that resulted in the foreign judgment. In this particular
circumstance, given that the complaint is lodged against an estate and is based
on the US District Courts Final Judgment, this foreign judgment may, for
purposes of classification under the governing procedural rule, be deemed as
subsumed under Section 7(b)(3) of Rule 141, i.e., within the class of all other
actions not involving property. Thus, only the blanket filing fee of minimal amount
is required.
Finally, petitioners also invoke Section 11, Article III of the Constitution, which
states that [F]ree access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of poverty. Since
the provision is among the guarantees ensured by the Bill of Rights, it certainly
gives rise to a demandable right. However, now is not the occasion to elaborate
on the parameters of this constitutional right. Given our preceding discussion, it is
not necessary to utilize this provision in order to grant the relief sought by the
petitioners. It is axiomatic that the constitutionality of an act will not be resolved
by the courts if the controversy can be settled on other grounds or unless the
resolution thereof is indispensable for the determination of the case.
[73]

[74]

One more word. It bears noting that Section 48, Rule 39 acknowledges that
the Final Judgment is not conclusive yet, but presumptive evidence of a right of
the petitioners against the Marcos Estate. Moreover, the Marcos Estate is not
precluded to present evidence, if any, of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive as it is
on the question of filing fees and no other, does not render verdict on the
enforceability of the Final Judgment before the courts under the jurisdiction of the
Philippines, or for that matter any other issue which may legitimately be
presented before the trial court. Such issues are to be litigated before the trial
court, but within the confines of the matters for proof as laid down in Section 48,
Rule 39. On the other hand, the speedy resolution of this claim by the trial court
is encouraged, and contumacious delay of the decision on the merits will not be
brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are
NULLIFIED and SET ASIDE, and a new order REINSTATING Civil Case No. 971052 is hereby issued. No costs.
SO ORDERED.
Puno, (Chairman),
JJ., concur.

[1]

Austria-Martinez,

Callejo,

Sr., and Chico-Nazario,

Priscilla Mijares is a judge of the Regional Trial Court of Pasay, Loretta Ann P. Rosales an
incumbent member of the House of Representatives, and Joel Lamangan a noted film
director.

[2]

Namely Celsa Hilao, Josefina Hilao Forcadilla, Arturo P. Revilla, Jr., Rodolfo G. Benosa, Danila
M. Fuente, Renato Pineda, Domiciano Amparo, Chistopher Sorio, Jose Duran, and Adora
Faye De Vera. Rollo, pp. 42-47.

[3]

Except for Celsa Hilao, who instead alleged that her daughter, Liliosa Hilao, had been tortured
then executed by military personnel during martial law. Id. at 42-43.

[4]

Id. at 42.

[5]

Id. at 35.

[6]

The Opinion was authored by Circuit Judge Betty B. Fletcher and concurred in by Circuit Judge
Harry Pragerson. Circuit Judge Pamela Ann Rymer filed an opinion concurring and
dissenting in part, her dissent centering on the methodology used for computing
compensatory damages. Rollo, pp. 84-132.

[7]

Under Section 58 of the US Federal Rules of Civil Procedure, the judgment for compensatory
damages in a class suit is awarded to a randomly selected. Petitioner Joel Lamangan
was among the randomly selected claimants of the Torture subclass awarded damages
by the US District Court. See Rollo, p. 71.

[8]

Now Section 48, Rule 39, 1997 Rules of Civil Procedure.

[9]

Since increased to P600.00.

[10]

Now an Associate Justice of the Court of Appeals.

[11]

Petitioners correctly note that they are precluded from filing an appeal on certiorari under
Section 1, Rule 41 of the Rules of Civil Procedure, which bars an appeal taken from an
order dismissing an action without prejudice and dictates the aggrieved party to file an
appropriate civil action under Rule 65 instead. See Rollo, p. 9

[12]

In a Resolution dated 4 December 2000. Rollo, p. 282.

[13]

Id. at 205.

[14]

See Section 7(c), Rule 141.

[15]

See Section 7(d), id.

[16]

Gochan v. Gochan, 423 Phil. 491, 502 (2001).

[17]

Philippine Aluminum Wheels v. Fasgi Enterprises, Inc., G.R. No. 137378, 12 October 2000, 342
SCRA 722, 734; citing Jovito R Salonga, Rex Bookstore, Manila, Philippines, 1995
Edition, p. 543.

[18]

159 U.S. 113 (1895)

[19]

47 Phil. 189 (1925). While the Philippine Supreme Court in this case refused to enforce the
judgment of the Hongkong Court on the ground of mistake of law or fact, it was reversed
on appeal to the US Supreme Court.

[20]

Id. JJ. Malcolm and Avancea, dissenting.

[21]

See also Borthwick v. Hon. Castro-Bartolome, G.R. No. L-57338, 23 July 1987, 152 SCRA 129,
235; Philippine International Shipping Corp. v. Court of Appeals, G.R. No. 77085, 26 April
1989, 172 SCRA 810, 819.

[22]

Ultimately, matters of remedy and procedure such as those relating to the service of summons
or court process upon the defendant, the authority of counsel to appear and represent a
defendant and the formal requirements in a decision are governed by the lex fori or the
internal law of the forum. Asiavest Merchant Bankers (M) Berhad v. Court of Appeals, 414
Phil. 13, 29 (1991).

[23]

Fraud, to hinder the enforcement within this jurisdiction of a foreign judgment, must be
extrinsic, i.e., fraud based on facts not controverted or resolved in the case where
judgment is rendered, or that which would go to the jurisdiction of the court or would
deprive the party against whom judgment is rendered a chance to defend the action to
which he has a meritorious case or defense. In fine, intrinsic fraud, that is, fraud which
goes to the very existence of the cause of action such as fraud in obtaining the consent
to a contract is deemed already adjudged, and it, therefore, cannot militate against the
recognition or enforcement of the foreign judgment. Philippine Aluminum Wheels v. Fasgi
Enterprises, Inc., supra note 17.

[24]

See,

e.g., Nagarmull v. Binalbagan-Isabela Sugar Co., 144 Phil.


Ingenholl v. Walter E. Olsen and Company, Inc., supra note 20.

[25]

Roeher v. Rodriguez, G.R. No. 142820, 20 June 2003, 404 SCRA 495, 503.

[26]

An action must be brought in the second state upon the judgment recovered in the first. J.
Salonga, Private International Law (3rd ed., 1967), at 500; citing Goodrich, 600, 601;
Chesire, 628; II Beale, 1377. But see E. Scoles and P. Hay, Conflict of Laws (2nd ed.,
1982), at 969, which recognizes that civil law countries provide a procedure to give
executory force to the foreign judgment, as distinguished from the Anglo-American
common law (but not statutory) practice of requiring an action on the judgment.

[27]

See Philsec Investment Corp. v. Court of Appeals, G.R. No. 103493, 19 June 1997, 274 SCRA
102, 110.

[28]

Northwest Orient Airlines v. Court of Appeals, G.R. No. 112573, 9 February 1995, 241 SCRA
192, 199.

[29]

See Section 3(a), Rule 1, Rules of Civil Procedure.

[30]

Every ordinary civil action must be based on a cause of action. Section 1, Rule 2, Rules of Civil
Procedure. A cause of action is the act or omission by which a party violates a right of
another. Section 2, Rule 2, Rules of Civil Procedure.

[31]

See Pacific Asia Overseas Shipping Corp. v. NLRC, G.R. No. 76595. 6 May 1988, 161 SCRA
122, 133.

[32]

Soles & Hay, supra note 27, at 916.

[33]

Ibid.

[34]

Salonga, supra note 27, at 514; citing Cheshire, 803.

[35]

Rollo, p. 30. Emphasis omitted.

[36]

133 Phil. 526 (1968).

[37]

Id. at 528.

[38]

Rollo, at 326, citing Arroz v. Alojado, 19 SCRA 711 (1967).

[39]

Ibid citing Bunayog v. Tunas, 106 Phil. 715 (1959)

[40]

Id. citing Baito v. Sarmiento, 109 Phil. 148 (1960).

[41]

Id. citing De Rivera v. Halili, 9 SCRA 59 (1963).

[42]

Id. citing Bautista v. Lim, 88 SCRA 479 (1979) and De Leon v. Court of Appeals, 287 SCRA 94
(1998).

[43]

Id. citing Amorganda v. Court of Appeals, 166


Company v. Herrera, 120 SCRA 89 (1983).

[44]

Id. citing Mercado v. Ubay, 187 SCRA 719 (1990) and Filipino Pipe Workers Union v. Batario,
Jr., 163 SCRA 789 (1988).

[45]

As amended by Rep. Act No. 7691.

[46]

Supra note 32.

[47]

Supra note 17.

[48]

Supra note 18.

[49]

H. Steiner & D. Vagts, Transnational Legal Problems: Materials and Text (2nd ed., 1976), at
775.

[50]

Ibid.

[51]

See Salonga, supra note 27, at 66.

[52]

Id. at 502-503.

[53]

Scoles & Hays, supra note 27, at 970.

[54]

Steiner & Vagts, supra note 51, at 808. A decision rendered in one of the Contracting States
shall be entitled to recognition and enforcement in another Contracting State under the
terms of this Convention (1) if the decision was given by a court considered to have

SCRA

203

72,

(1988);

77

(1970);

Ortigas

&

jurisdiction within the meaning of this Convention, and (2) if it is no longer subject to
ordinary forms of review in the State of origin. Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters, Chapter II, Article 4.
[55]

To date, only Cyprus, the Netherlands, Portugal and Kuwait have either ratified or acceded to
the Convention.

[56]

Steiner & Vagts, supra note 51.

[57]

Steiner & Vagts, supra note 51,at 776.

[58]

Salonga, supra note 51, at 502.

[59]

Steiner & Vagts, supra note 27, at 779. A policy common to all legal systems is to provide for
the final resolution of disputes. The policy is furthered by each nations adoption of a view
of jurisdiction in the international sense which recognizes the foreign courts assertion of
jurisdiction as satisfying its own notions of due process in circumstances in which it itself
would have asserted jurisdiction. Soles & Hay, supra note 27, at 976; citing Hay,
International versus Interstate Conflicts Law in the United States, 35 Rabels Zeitschrift
429,450 n. 101 (1971) and Cherun v. Frishman, 236 F. Supp. 292 (D.D.C. 1964).
Salonga, in affirming the rule of want of jurisdiction, cites the commentaries of Cheshire,
Wolff, Goodrich and Nussbaum.

[60]

See, e.g., Salonga, supra note 27 at 513.

[61]

Ibid; citing Henderson v. Henderson, 6 Q.B. (1844) 288; Vanquelin v. Bouard, 15 C.B. (N.S.
1863) 341; Godard v. Gray, L.R. 6 Q.B. 139 (1870); Vadala v. Lawes 25 Q.B.D. (1890)
319, 316; cf. Chandler v. Peketz, 297 U.S. 609, 56 S.Ct., 80 L.Ed. 881 (1936); Cheshire,
661-664; Wolff, 268; Goodrich, 603.

[62]

Soles & Hay, supra note 27, at 978.

[63]

Thus, when the foreign law, judgment or contract is contrary to a sound and established public
policy of the forum, the said foreign law, judgment or order shall not