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The application of the petitioner sets forth the following grounds for
the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon
the electoral Commission solely as regards the merits of
contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the
power to regulate the proceedings of said election contests,
which power has been reserved to the Legislative
Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in
pursuance of the Constitution, whose exclusive jurisdiction
relates solely to deciding the merits of controversies
submitted to them for decision and to matters involving their
internal organization, the Electoral Commission can regulate
its proceedings only if the National Assembly has not availed
of its primary power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is,
therefore, valid and should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance
appended to the Constitution and paragraph 6 of article 7 of
the Tydings-McDuffie Law (No. 127 of the 73rd Congress of
the United States) as well as under section 1 and 3 (should
be sections 1 and 2) of article VIII of the Constitution, this
Supreme Court has jurisdiction to pass upon the
fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an
answer in behalf of the respondent Electoral Commission interposing
the following special defenses:
xxx
xxx
Mr. ROXAS. That is merely for the sake of clarity. In fact the
cases of contested elections are already included in the
phrase "the elections, returns and qualifications." This
phrase "and contested elections" was inserted merely for the
sake of clarity.
10
In the same session, the first clause of the aforesaid draft reading
"The election, returns and qualifications of the members of the
National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates
Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and the draft as
amended, Delegate Roxas speaking for the Sponsorship Committee
said:
xxx
xxx
xxx
xxx
xxx
11
12
13
Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices
Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws
Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol.
XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election
contests which were originally heard by the Committee of the House
of Commons, are since 1922 tried in the courts. Likewise, in the
Commonwealth of Australia, election contests which were originally
determined by each house, are since 1922 tried in the High Court. In
Hungary, the organic law provides that all protests against the
election of members of the Upper House of the Diet are to be
resolved by the Supreme Administrative Court (Law 22 of 1916,
chap. 2, art. 37, par. 6). The Constitution of Poland of March 17,
1921 (art. 19) and the Constitution of the Free City of Danzig of May
13, 1922 (art. 10) vest the authority to decide contested elections to
the Diet or National Assembly in the Supreme Court. For the purpose
of deciding legislative contests, the Constitution of the German Reich
of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the
Grecian Republic of June 2, 1927 (art. 43), all provide for an
Electoral Commission.
The creation of an Electoral Commission whose membership is
recruited both from the legislature and the judiciary is by no means
unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by
each of the two opposing candidates. As the Constitution made no
adequate provision for such a contingency, Congress passed a law
on January 29, 1877 (United States Statutes at Large, vol. 19, chap.
37, pp. 227-229), creating a special Electoral Commission composed
of five members elected by the Senate, five members elected by the
House of Representatives, and five justices of the Supreme Court,
the fifth justice to be selected by the four designated in the Act. The
decision of the commission was to be binding unless rejected by the
two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard,
14
15
16
17
18
Separate Opinions
ABAD SANTOS, J., concurring:
19
20
EN BANC
21
PUNO, J.:
At bench are two (2) petitions assailing certain provisions of Republic
Act No. 7854 as unconstitutional. R.A. No. 7854 as unconstitutional.
R.A. No. 7854 is entitled, "An Act Converting the Municipality of
Makati Into a Highly Urbanized City to be known as the City of
Makati." 1
G.R. No. 118577 involves a petition for prohibition and declaratory
relief. It was filed by petitioners Juanito Mariano, Jr., Ligaya S.
Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo
Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza,
Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano,
Jr., is a resident of Makati. The others are residents of Ibayo Ususan,
Taguig, Metro Manila. Suing as taxpayers, they assail as
22
23
24
25
These issues have been laid to rest in the recent case of Tobias
v. Abalos. 8 In said case, we ruled that reapportionment of legislative
districts may be made through a special law, such as in the charter of a new
city. The Constitution 9 clearly provides that Congress shall be composed of
not more than two hundred fifty (250) members, unless otherwise fixed by
law. As thus worded, the Constitution did not preclude Congress from
increasing its membership by passing a law, other than a general
reapportionment of the law. This is its exactly what was done by Congress in
enacting R.A. No. 7854 and providing for an increase in Makati's legislative
district. Moreover, to hold that reapportionment can only be made through a
general apportionment law, with a review of all the legislative districts allotted
to each local government unit nationwide, would create an inequitable
situation where a new city or province created by Congress will be denied
legislative representation for an indeterminate period of time. 10 The
intolerable situations will deprive the people of a new city or province a
particle of their sovereignty. 11 Sovereignty cannot admit of any kind of
subtraction. It is indivisible. It must be forever whole or it is not sovereignty.
26
with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the
political units directly affected." These criteria are now set forth in
Section 7 of the Local Government Code of 1991 (R.A. No. 7160).
One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by
metes and bounds with technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of
Makati Into a Highly Urbanized City to be Known as the City of
Makati) to describe the territorial boundaries of the city by metes and
bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds
as a condition sine qua non for the creation of a local government
unit or its conversion from one level to another. The criteria provided
for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The
petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing
Said section only applies to the conversion of a municipality or a
cluster of barangays into a COMPONENT CITY, not a highly
urbanized city. It pertinently reads as follows:
Sec. 450. Requisite for creation. (a) A municipality
or a cluster of barangays may be converted into a
component city if it has an average annual income,
as certified by the Department of Finance, of at least
Twenty million pesos (P20,000,000.00) for the last
two (2) consecutive years based on 1991 constant
prices, and if it has either of the following requisites:
I.
27
II.
xxx xxx xxx
Strictly speaking, the increase in the number of legislative seats for
the City of Makati provided for in R.A. No. 7854 is not an increase
justified by the clause unless otherwise fixed by law in paragraph 1,
Section 5, Article VI of the Constitution. That clause contemplates of
the reapportionment mentioned in the succeeding paragraph (4) of
the said Section which reads in full as follows:
28
I.
The omission of R.A. No. 7854 (An Act Converting the Municipality of
Makati Into a Highly Urbanized City to be Known as the City of
Makati) to describe the territorial boundaries of the city by metes and
bounds does not make R.A. No. 7854 unconstitutional or illegal. The
29
30
Footnotes
31
EN BANC
[G.R. No. 152295. July 9, 2002]
ANTONIETTE
V.C.
MONTESCLAROS,
MARICEL
CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN
32
DECISION
The Case
CARPIO, J.:
33
The Facts
The SK is a youth organization originally established by
Presidential Decree No. 684 as the Kabataang Barangay (KB for
brevity). The KB was composed of all barangay residents who were
less than 18 years old, without specifying the minimum age. The KB
was organized to provide its members with the opportunity to
express their views and opinions on issues of transcendental
importance.[3]
The Local Government Code of 1991 renamed the KB to SK
and limited SK membership to those youths at least 15 but not more
than 21 years of age. [4] The SK remains as a youth organization in
every barangay tasked to initiate programs to enhance the
social, political, economic, cultural, intellectual, moral, spiritual, and
physical development of the youth.[5] The SK in every barangay is
composed of a chairperson and seven members, all elected by
the Katipunan ng Kabataan. The Katipunan ng Kabataan in every
barangay is composed of all citizens actually residing in the
barangay for at least six months and who meet the membership age
requirement.
The first SK elections took place on December 4, 1992. RA No.
7808 reset the SK elections to the first Monday of May of 1996 and
every three years thereafter. RA No. 7808 mandated the Comelec to
supervise the conduct of the SK elections under rules the Comelec
shall promulgate. Accordingly, the Comelec on December 4, 2001
issued Resolution Nos. 4713[6] and 4714[7] to govern the SK elections
on May 6, 2002.
34
The Issues
IV.
Petitioners[16] raise the following grounds in support of their
petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN THEY INTENDED TO
POSTPONE THE SK ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN THEY INTENDED TO
DISCRIMINATE, DISENFRANCHISE, SINGLE OUT AND
DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT
LESS[17] (SIC) THAN 21 YEARS OLD COMPOSED OF ABOUT 7
MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH
35
36
37
provisions of the law and holds the office as a trust for the people he
represents. (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should
realize from the very start that no one has a proprietary right to public
office. While the law makes an SK officer an ex-officio member of a
local government legislative council, the law does not confer on
petitioners a proprietary right or even a proprietary expectancy to sit
in local legislative councils. The constitutional principle of a public
office as a public trust precludes any proprietary claim to public
office. Even the State policy directing equal access to opportunities
for public service[35] cannot bestow on petitioners a proprietary right
to SK membership or a proprietary expectancy to ex-officio public
offices.
Moreover, while the State policy is to encourage the youths
involvement in public affairs,[36] this policy refers to those who belong
to the class of people defined as the youth.Congress has the power
to define who are the youth qualified to join the SK, which itself is a
creation of Congress. Those who do not qualify because they are
past the age group defined as the youth cannot insist on being part
of the youth. In government service, once an employee reaches
mandatory retirement age, he cannot invoke any property right to
cling to his office. In the same manner, since petitioners are now past
the maximum age for membership in the SK, they cannot invoke any
property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion
attended the postponement of the SK elections. RA No. 9164 is now
the law that prescribes the qualifications of candidates and voters for
the SK elections. This law also fixes the date of the SK
elections. Petitioners are not even assailing the constitutionality of
RA No. 9164. RA No. 9164 enjoys the presumption of
constitutionality and will apply to the July 15, 2002 SK elections.
38
[1]
[2]
39
Second Whereas Clause of PD No. 684; See also Mercado vs. Board of Election
Supervisors of Ibaan, Batangas, 243 SCRA 422 (1995).
[3]
This was the same membership qualification in Section 116 of the Local Government
Code of 1983. Earlier, PD No. 1102, issued on February 28, 1977, had increased the
age requirement to twenty-one years of age or less.
[4]
Section 426 of the Local Government Code enumerates the powers and functions of
the Sangguniag Kabataan as follows: Section 426.Powers and Functions of the
Sangguniang Kabataan. The Sangguniang Kabataan shall: (a) Promulgate resolutions
necessary to carry out the objectives of the youth in the barangay in accordance with
the applicable provisions of this Code; (b) Initiate programs designed to enhance the
social, political, economic, cultural, intellectual, moral, spiritual, and physical
development of the members; (c) Hold fund-raising activities, the proceeds of which
shall be tax-exempt and shall accrue to the general fund of the sangguniang
kabataan: Provided, however, That in the appropriation thereof, the specific purpose
for which such activity has been held shall be first satisfied; (d) Create such bodies or
committees as it may deem necessary to effectively carry out its programs and
activities; (e) Submit annual and end-of-term reports to the sangguniang barangay on
their projects and activities for the survival and development of the youth in the
barangay; (f) Consult and coordinate with all youth organizations in the barangay for
policy formulation and program implementation; (g) Coordinate with the appropriate
national agency for the implementation of youth development projects and programs
at the national level; (h) Exercise such other powers and perform such other duties
and functions as the sangguniang barangay may determine or delegate; and (i)
Exercise such other powers and perform such other duties and functions as may be
prescribed by law or ordinance.
[5]
Rollo, pp. 47-55. Resolution No. 4713 is entitled Rules and Regulation on the
Registration of Members of the Katipunan ng Kabataan in Connection with the May 6,
2002 Election of Members of the Sangguniang Kabataan.
[6]
Ibid., pp. 56-61. Resolution No. 4714 is entitled Calendar of Activities and Periods of
Certain Prohibited Acts in Connection with the May 6, 2002 Election of Members of the
Sangguniang Kabataan.
[7]
[8]
[9]
Ibid., p. 64.
[10]
Ibid., p. 65.
[13]
An Act amending Republic Act No. 7160, otherwise known as the `Local
Government Code of 1991, as amended, resetting the elections of the Sangguniang
Kabataan officials to the first Monday of November, 2002, and for other purposes.
[14]
[16]
[17]
[18]
[20]
[21]
[22]
Santiago v. Guingona, 298 SCRA 756 (1998); See also Arroyo v. De Venecia, 277
SCRA 268 (1997); Tolentino v. Secretary of Finance, 249 SCRA 628 (1995).
[23]
[24]
[25]
[26]
[27]
[28]
[29]
Ibid.
[30]
[31]
[32]
[33]
[34]
[11]
[12]
40
[35]
[36]
[37]
[38]
[39]
[40]
[41]
EN BANC
[G.R. No. 93100. June 19, 1997]
41
ROMERO, J.:
Before this Court are consolidated petitions questioning the
constitutionality of some portions of Republic Act No. 6657 otherwise
known as the Comprehensive Agrarian Reform Law.[1]
Petitioners Atlas Fertilizer Corporation, [2] Philippine Federation
of Fishfarm Producers, Inc. and petitioner-in-intervention Archies
Fishpond, Inc. and Arsenio Al. Acuna[3] are engaged in the
aquaculture industry utilizing fishponds and prawn farms. They assail
Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A. 6657, as well as the
implementing guidelines and procedures contained in Administrative
Order Nos. 8 and 10 Series of 1988 issued by public respondent
Secretary of the Department of Agrarian Reform as unconstitutional.
Petitioners claim that the questioned provisions of CARL violate
the Constitution in the following manner:
1. Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL extend agrarian
reform to aquaculture lands even as Section 4, Article XIII of the
constitution limits agrarian reform only to agriculture lands.
2. The questioned provisions similarly treat of aquaculture lands and
agriculture lands when they are differently situated, and differently
treat aquaculture lands and other industrial lands, when they are
similarly situated in violation of the constitutional guarantee of the
equal protection of the laws.
3. The questioned provisions distort employment benefits and
burdens in favor of aquaculture employees and against other
industrial workers even as Section 1 and 3, Article XIII of the
42
While the Court will not hesitate to declare a law or an act void
when confronted squarely with constitutional issues, neither will it
preempt the Legislative and the Executive branches of the
government in correcting or clarifying, by means of amendment, said
law or act. On February 20, 1995, Republic Act No. 7881 [6] was
approved by Congress. Provisions of said Act pertinent to the
assailed provisions of CARL are the following:
43
[1]
[2]
[3]
[4]
44
[5]
Supra.
[6]
EN BANC
[G.R. No. 147780. May 10, 2001]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
MANCAO, petitioners,
vs. SECRETARY
HERNANDO
PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR.
SUPT. REYNALDO BERROYA, respondents.
[G.R. No. 147781. May 10, 2001]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES,
Secretary of National Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO
PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIR.
45
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by an
angry and violent mob armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons assaulting and
attempting to break into Malacaang, issued Proclamation No. 38
declaring that there was a state of rebellion in the National Capital
Region. She likewise issued General Order No. 1 directing the
Armed Forces of the Philippines and the Philippine National Police to
suppress the rebellion in the National Capital Region. Warrantless
arrests of several alleged leaders and promoters of the rebellion
were thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a
state of rebellion, which allegedly gave a semblance of legality to the
arrests, the following four related petitions were filed before the
Court(1) G.R. No. 147780 for prohibition, injunction, mandamus,
and habeas corpus (with an urgent application for the issuance of
temporary restraining order and/or writ of preliminary injunction) filed
by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao;
(2) G.R. No. 147781 for mandamus and/or review of the factual basis
for the suspension of the privilege of the writ of habeas corpus, with
prayer for a temporary restraining order filed by Miriam Defensor-
Santiago; (3) G.R. No. 147799 for prohibition and injunction with
prayer for a writ of preliminary injunction and/or restraining order filed
by Rolando A. Lumbao; and (4) G.R. No. 147810 for certiorari and
prohibition filed by the political party Laban ng Demokratikong
Pilipino.
All the foregoing petitions assail the declaration of a state of
rebellion by President Gloria Macapagal-Arroyo and the warrantless
arrests allegedly effected by virtue thereof, as having no basis both
in fact an in law. Significantly, on May 6, 2001, President MacapagalArroyo ordered the lifting of the declaration of a state of rebellion in
Metro Manila. Accordingly, the instant petitions have been rendered
moot and academic. As to petitioners claim that the proclamation of a
state of rebellion is being used by the authorities to justify
warrantless arrests, the Secretary of Justice denies that it has issued
a particular order to arrest specific persons in connection with the
rebellion. He states that what is extant are general instructions to law
enforcement officers and military agencies to implement
Proclamation No. 38. Indeed, as stated in respondents Joint
Comments:
[I]t is already the declared intention of the Justice Department
and police authorities to obtain regular warrants of arrests from
the courts for all acts committed prior to and until May 1, 2001
which means that preliminary investigators will henceforth be
conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R.
No. 147799, p. 16; G.R. No. 147810, p. 24)
With this declaration, petitioners
warrantless arrests should be laid to rest.
apprehensions
as
to
46
The petition herein is denominated by petitioner DefensorSantiago as one for mandamus. It is basic in matters relating to
petitions for mandamus that the legal right of the petitioner to the
performance of a particular act which is sought to be compelled must
be clear and complete. Mandamus will not issue the right to relief is
clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil.
272). Up to the present time, petitioner Defensor-Santiago has not
shown that she is in imminent danger of being arrested without a
warrant. In point of fact, the authorities have categorically stated that
petitioner will not be arrested without a warrant.
47
The Court, in a proper case, may look into the sufficiency of the
factual basis of the exercise of this power. However, this is no longer
feasible at this time, Proclamation No. 38 having been lifted.
Petitioner Laban ng Demoktratikong Pilipino is not a real partyin-interest. The rule requires that a party must show a personal stake
in the outcome of the case or an injury to himself that can be
redressed by a favorable decision so as to warrant an invocation of
the courts jurisdiction and to justify the exercise of the courts
remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239
SCRA 386 [1994]). Here, petitioner has not demonstrated any injury
to itself which would justify resort to the Court. Petitioner is a juridical
person not subject to arrest. Thus, it cannot claim to be threatened
by a warrantless arrest. Nor is it alleged that its leaders, members,
and supporters are being threatened with warrantless arrest and
detention for the crime of rebellion. Every action must be brought in
the name of the party whose legal right has been invaded or
infringed, or whose legal right is under imminent threat of invasion or
infringement.
At best, the instant petition may be considered as an action for
declaratory relief, petitioner claiming that its right to freedom of
expression and freedom of assembly is affected by the declaration of
a state of rebellion and that said proclamation is invalid for being
contrary to the Constitution.
However, to consider the petition as one for declaratory relief
affords little comfort to petitioner, this Court not having jurisdiction in
the first instance over such a petition. Section 5[1], Article VIII of the
Constitution limits the original jurisdiction of the Court to cases
affecting ambassadors, other public ministers and consuls, and over
petitions
for certiorari,
prohibition, mandamus, quo
warranto,
and habeas corpus.
48
Mendoza,
49
50
carryoutthenecessaryactionsandmeasurestosuppressandquellthe
rebellionwithdueregardtoconstitutionalrights.
General Order No. 4 is similarly worded:
GENERALORDERNO.4
DIRECTINGTHEARMEDFORCESOFTHEPHILIPPINESANDTHE
PHILIPPINENATIONALPOLICETOSUPPRESSREBELLION
WHEREAS,certainelementsoftheArmedForcesofthePhilippines,
armedwithhighpoweredfirearmsandexplosives,actinguponthe
instigationandcommandanddirectionofknownandunknownleaders,
haveseizedabuildinginMakatiCity,putbombsinthearea,publicly
declaredwithdrawalofsupportfor,andtookarmsagainsttheduly
constitutedGovernment,andcontinuetorisepubliclyandshowopen
hostility,forthepurposeofremovingallegiancetotheGovernmentcertain
bodiesoftheArmedForcesofthePhilippinesandthePhilippineNational
Police,anddeprivingthePresidentoftheRepublicofthePhilippines,
whollyorpartially,ofherpowersandprerogativeswhichconstitutethe
crimeofrebellionpunishableunderArticle134etseq.oftheRevisedPenal
Code,asamended;
WHEREAS,thesemisguidedelementsoftheArmedForcesofthe
Philippinesarebeingsupported,abettedandaidedbyknownandunknown
leaders,conspiratorsandplottersinthegovernmentserviceandoutsidethe
government;
WHEREAS,underSection18,ArticleVIIofthepresentConstitution,
wheneveritbecomesnecessary,thePresident,astheCommanderinChief
ofallArmedForcesofthePhilippines,maycalloutsuchArmedForcesto
suppresstherebellion;
NOW,THEREFORE,I,GLORIAMACAPAGALARROYO,byvirtueof
thepowersvestedinmebytheConstitutionasPresidentoftheRepublicof
thePhilippinesandCommanderinChiefofallthearmedforcesofthe
PhilippinesandpursuanttoProclamationNo.427datedJuly27,2003,do
herebycallupontheArmedForcesofthePhilippinesandthePhilippine
NationalPolicetosuppressandquelltherebellion.
IherebydirecttheChiefoftheArmedForcesofthePhilippinesandthe
ChiefofthePhilippineNationalPoliceandtheofficersandmenofthe
ArmedForcesofthePhilippinesandthePhilippineNationalPoliceto
immediatelycarryoutthenecessaryandappropriateactionsandmeasures
tosuppressandquelltherebellionwithdueregardtoconstitutionalrights.
By the evening of July 27, 2003, the Oakwood occupation had
ended. After hours-long negotiations, the soldiers agreed to return to
barracks. The President, however, did not immediately lift the
declaration of a state of rebellion and did so only on August 1, 2003,
through Proclamation No. 435:
DECLARINGTHATTHESTATEOFREBELLIONHASCEASEDTO
EXIST
WHEREAS,byvirtueofProclamationNo.427datedJuly27,2003,astate
ofrebellionwasdeclared;
WHEREAS,byvirtueofGeneralOrderNo.4datedJuly27,2003,which
wasissuedonthebasisofProclamationNo.427datedJuly27,2003,and
pursuanttoArticleVII,Section18oftheConstitution,theArmedForcesof
thePhilippinesandthePhilippineNationalPoliceweredirectedtosuppress
andquelltherebellion;
WHEREAS,theArmedForcesofthePhilippinesandthePhilippine
NationalPolicehaveeffectivelysuppressedandquelledtherebellion.
NOW,THEREFORE,I,GLORIAMACAPAGALARROYO,Presidentof
thePhilippines,byvirtueofthepowersvestedinmebylaw,herebydeclare
thatthestateofrebellionhasceasedtoexist.
In the interim, several petitions were filed before this Court
challenging the validity of Proclamation No. 427 and General Order
No. 4.
51
The Court agrees with the Solicitor General that the issuance of
Proclamation No. 435, declaring that the state of rebellion has
ceased to exist, has rendered the case moot.As a rule, courts do not
adjudicate moot cases, judicial power being limited to the
determination of actual controversies.[18] Nevertheless, courts will
decide a question, otherwise moot, if it is capable of repetition yet
evading review.[19] The case at bar is one such case.
In G.R. No. 159185 (Rep. Suplico et al. v. President MacapagalArroyo and Executive Secretary Romulo), petitioners brought suit as
citizens and as Members of the House of Representatives whose
rights, powers and functions were allegedly affected by the
declaration of a state of rebellion. [10] Petitioners do not challenge the
power of the President to call out the Armed Forces. [11] They argue,
however, that the declaration of a state of rebellion is a superfluity,
and is actually an exercise of emergency powers. [12] Such exercise,
it is contended, amounts to a usurpation of the power of Congress
granted by Section 23 (2), Article VI of the Constitution. [13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner
Senator assails the subject presidential issuances as an
unwarranted, illegal and abusive exercise of a martial law power that
has no basis under the Constitution. [14] In the main, petitioner fears
52
AnactoftheExecutivewhichinjurestheinstitutionofCongresscausesa
derivativebutnonethelesssubstantialinjury,whichcanbequestionedbya
memberofCongress.Insuchacase,anymemberofCongresscanhavea
resorttothecourts.
Petitioner Members of Congress claim that the declaration of a state
of rebellion by the President is tantamount to an exercise of
Congress emergency powers, thus impairing the lawmakers
legislative powers. Petitioners also maintain that the declaration is a
subterfuge to avoid congressional scrutiny into the Presidents
exercise of martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have
no legal standing or locus standi to bring suit. Legal standing
or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult
constitutional questions.[23]
Petitioners Sanlakas and PM assert that:
2.Asabasicprincipleoftheorganizationsandasanimportantplankin
theirprograms,petitionersarecommittedtoassert,defend,protect,uphold,
andpromotetherights,interests,andwelfareofthepeople,especiallythe
poorandmarginalizedclassesandsectorsofPhilippinesociety.Petitioners
arecommittedtodefendandasserthumanrights,includingpoliticaland
civilrights,ofthecitizens.
3.Membersofthepetitionerorganizationsresorttomassactionsand
mobilizationsintheexerciseoftheirConstitutionalrightstopeaceably
assembleandtheirfreedomofspeechandofexpressionunderSection4,
ArticleIIIofthe1987Constitution,asavehicletopubliclyventilatetheir
grievancesandlegitimatedemandsandtomobilizepublicopinionto
supportthesame.[24][Emphasisintheoriginal.]
53
Theseprovisionshavenotchangedthetraditionalrulethatonlyrealparties
ininterestorthosewithstanding,asthecasemaybe,mayinvokethe
judicialpower.ThejurisdictionofthisCourt,evenincasesinvolving
constitutionalquestions,islimitedbythecaseandcontroversyrequirement
ofArt.VIII,5.Thisrequirementliesattheveryheartofthejudicial
function.Itiswhatdifferentiatesdecisionmakinginthecourtsfrom
decisionmakinginthepoliticaldepartmentsofthegovernmentandbarsthe
bringingofsuitsbyjustanyparty.[27]
That petitioner SJS officers/members are taxpayers and citizens
does not necessarily endow them with standing. A taxpayer may
bring suit where the act complained of directly involves the illegal
disbursement of public funds derived from taxation. [28] No such illegal
disbursement is alleged.
On the other hand, a citizen will be allowed to raise a
constitutional question only when he can show that he has personally
suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a
favorable action.[29]Again, no such injury is alleged in this case.
Even granting these petitioners have standing on the ground
that the issues they raise are of transcendental importance, the
petitions must fail.
It is true that for the purpose of exercising the calling out power
the Constitution does not require the President to make a declaration
of a state of rebellion. Section 18, Article VII provides:
Sec.18.ThePresidentshallbetheCommanderinChiefofallarmedforces
ofthePhilippinesandwheneveritbecomesnecessary,hemaycallout
sucharmedforcestopreventorsuppresslawlessviolence,invasionor
rebellion.Incaseofinvasionorrebellion,whenthepublicsafetyrequires
it,hemay,foraperiodnotexceedingsixtydays,suspendtheprivilegeof
thewritofhabeascorpusorplacethePhilippinesoranypartthereofunder
martiallaw.Withinfortyeighthoursfromtheproclamationofmartiallaw
orthesuspensionofthewritofhabeascorpus,thePresidentshallsubmita
reportinpersonorinwritingtotheCongress.TheCongress,votingjointly,
byavoteofatleastamajorityofallitsMembersinregularorspecial
session,mayrevokesuchproclamationorsuspension,whichrevocation
shallnotbesetasidebythePresident.UpontheinitiativeofthePresident,
theCongressmay,inthesamemanner,extendsuchproclamationor
suspensionforaperiodtobedeterminedbytheCongress,iftheinvasionor
rebellionshallpersistandpublicsafetyrequiresit.
TheCongress,ifnotinsession,shall,withintwentyfourhoursfollowing
suchproclamationorsuspension,conveneinaccordancewithitsrules
withoutneedofacall.
TheSupremeCourtmayreview,inanappropriateproceedingfiledbyany
citizen,thesufficiencyofthefactualbasisfortheproclamationofmartial
laworthesuspensionoftheprivilegeofthewritofhabeascorpusorthe
extensionthereof,andmustpromulgateitsdecisionthereonwithinthirty
daysfromitsfiling.
AstateofmartiallawdoesnotsuspendtheoperationoftheConstitution,
norsupplantthefunctioningofthecivilcourtsorlegislativeassemblies,nor
authorizetheconfermentofthejurisdictiononmilitarycourtsandagencies
overcivilianswherecivilcourtsareabletofunction,norautomatically
suspendtheprivilegeofthewrit.
Thesuspensionoftheprivilegeofthewritshallapplyonlytopersons
judiciallychargedforrebellionoroffensesinherentinordirectlyconnected
withinvasion.
Duringthesuspensionoftheprivilegeofthewrit,anypersonthusarrested
ordetainedshallbejudiciallychargedwithinthreedays,otherwiseheshall
bereleased.[Emphasissupplied.]
The above provision grants the President, as Commander-inChief, a sequence of graduated power[s]. [30] 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. In the exercise of the latter two powers, the Constitution
requires the concurrence of two conditions, namely, an actual
invasion or rebellion, and that public safety requires the exercise of
such power.[31] However, as we observed in Integrated Bar of the
54
First to find definitive new piers for the authority of the Chief of
State, as the protector of the people, was President Andrew
Jackson. Coming to office by virtue of a political revolution, Jackson,
as President not only kept faith with the people by driving the
patricians from power. Old Hickory, as he was fondly called, was the
first President to champion the indissolubility of the Union by
defeating South Carolinas nullification effort.[34]
The Federal Tariff Acts of 1828 and 1832 that Congress enacted
did not pacify the hotspurs from South Carolina. Its State Legislature
ordered an election for a convention, whose members quickly
passed an Ordinance of Nullification. The Ordinance declared the
Tariff Acts unconstitutional, prohibited South Carolina citizens from
obeying them after a certain date in 1833, and threatened secession
if the Federal Government sought to oppose the tariff laws. The
Legislature then implemented the Ordinance with bristling punitive
laws aimed at any who sought to pay or collect customs duties. [35]
Jackson bided his time. His task of enforcement would not be
easy. Technically, the President might send troops into a State only if
the Governor called for help to suppress an insurrection, which would
not occur in the instance. The President could also send troops to
see to it that the laws enacted by Congress were faithfully
executed. But these laws were aimed at individual citizens, and
provided no enforcement machinery against violation by a
State. Jackson prepared to ask Congress for a force bill. [36]
In a letter to a friend, the President gave the essence of his
position. He wrote: . . . when a faction in a State attempts to nullify a
constitutional law of Congress, or to destroy the Union, the balance
of the people composing this Union have a perfect right to coerce
them to obedience. Then in a Proclamation he issued on December
10, 1832, he called upon South Carolinians to realize that there could
be no peaceable interference with the execution of the laws, and
dared them, disunion by armed force is treason. Are you ready to
incur its guilt? [37]
55
The Proclamation frightened nullifiers, non-nullifiers and tightrope walkers. Soon, State Legislatures began to adopt resolutions of
agreement, and the President announced that the national voice
from Maine on the north to Louisiana on the south had declared
nullification and accession confined to contempt and infamy.[38]
No other President entered office faced with problems so
formidable, and enfeebled by personal and political handicaps so
daunting, as Abraham Lincoln.
56
57
unstatedresidualpowerswhichareimpliedfromthegrantofexecutive
powerandwhicharenecessaryforhertocomplywithherdutiesunderthe
Constitution.ThepowersofthePresidentarenotlimitedtowhatare
expresslyenumeratedinthearticleontheExecutiveDepartmentandin
scatteredprovisionsoftheConstitution.Thisisso,notwithstandingthe
avowedintentofthemembersoftheConstitutionalCommissionof1986to
limitthepowersofthePresidentasareactiontotheabusesunderthe
regimeofMr.Marcos,fortheresultwasalimitationofspecificpowersof
thePresident,particularlythoserelatingtothecommanderinchiefclause,
butnotadiminutionofthegeneralgrantofexecutivepower.
[57]
[Underscoringsupplied.Italicsintheoriginal.]
Thus, the Presidents authority to declare a state of rebellion
springs in the main from her powers as chief executive and, at the
same time, draws strength from her Commander-in-Chief
powers. Indeed, as the Solicitor General accurately points out,
statutory authority for such a declaration may be found in Section 4,
Chapter 2 (Ordinance Power), Book III (Office of the President) of the
Revised Administrative Code of 1987, which states:
SEC.4.Proclamations.ActsofthePresidentfixingadateordeclaringa
statusorconditionofpublicmomentorinterest,upontheexistenceof
whichtheoperationofaspecificlaworregulationismadetodepend,
shallbepromulgatedinproclamationswhichshallhavetheforceofan
executiveorder.[Emphasissupplied.]
The foregoing discussion notwithstanding, in calling out the
armed forces, a declaration of a state of rebellion is an utter
superfluity.[58] At most, it only gives notice to the nation that such a
state exists and that the armed forces may be called to prevent or
suppress it.[59] Perhaps the declaration may wreak emotional effects
upon the perceived enemies of the State, even on the entire
nation. But this Courts mandate is to probe only into the legal
consequences of the declaration. This Court finds that such a
declaration is devoid of any legal significance. For all legal intents,
the declaration is deemed not written.
Should there be any confusion generated by the issuance of
Proclamation No. 427 and General Order No. 4, we clarify that, as
58
Sec.23.(1).
(2)Intimesofwarorothernationalemergency,theCongressmay,bylaw,
authorizethePresident,foralimitedperiodandsubjecttosuchrestrictions
asitmayprescribe,toexercisepowersnecessaryandpropertocarryouta
declarednationalpolicy.Unlesssoonerwithdrawnbyresolutionofthe
Congress,suchpowersshallceaseuponthenextadjournmentthereof.
The petitions do not cite a specific instance where the President
has attempted to or has exercised powers beyond her powers as
Chief Executive or as Commander-in-Chief.The President, in
declaring a state of rebellion and in calling out the armed forces, was
merely exercising a wedding of her Chief Executive and
Commander-in-Chief powers.These are purely executive powers,
vested on the President by Sections 1 and 18, Article VII, as opposed
to the delegated legislative powers contemplated by Section 23 (2),
Article VI.
WHEREFORE, the petitions are hereby DISMISSED.
SO ORDERED.
SEPARATE OPINION
VITUG, J.:
I am in complete agreement, eloquently expressed in
the ponencia, that a declaration of a state of rebellion is an utter
superfluity, which, at most, merely gives notice that such a state
exists and that the armed forces may be called to prevent or
suppress it. I also agree that the declaration of a state of rebellion
does not diminish constitutionally protected rights.
I find it necessary to emphasize, however, that while this Court
considers the proclamation of the state of rebellion as being
essentially devoid of any legal significance, it is not, however, to be
understood as countenancing the commission of acts ostensibly in
pursuance thereof but which may, in themselves, be violative of
fundamental rights.Indeed, the warrantless arrests and searches, to
which my colleague Mme. Justice Ynares-Santiago made reference
in her dissenting opinion, may not necessarily find justification in the
bare proclamation.
I vote for the dismissal of the petitions.
SEPARATE OPINION
PANGANIBAN, J.:
Petitioners challenge the constitutionality of the state of rebellion
declared by the President through Proclamation No. 427 and
General Order No. 4 in the wake of the so-called Oakwood Incident.
59
60
[1]
Rollo, G.R. No. 159085, p. 7; Rollo, G.R. No. 159103, pp. 4-5; Rollo, G.R.
No. 159185, pp. 4-5; Rollo, G.R. No. 159186, p. 9.
[2]
The Court in a Resolution dated August 5, 2003 (Rollo, G.R. No. 159086,
p. 18) previously dismissed the Sanlakas petition for failure to
attach certified true copies of Proclamation No. 427 and General
Order No. 4, and for failure to explain why service of the petition on
respondents was not made personally. Petitioners subsequently
filed a motion for leave to admit the petition with compliance for
reconsideration, attaching therewith a certified copy of the
impugned Proclamation and General Order. The Court, in a
Resolution dated August 12, 2003 (Id., at 73) granted petitioners
motion for leave and reinstated the petition.
[6]
Id., at 6.
[7]
Id., at 8.
[8]
Id., at 7.
[9]
Ibid.
[10]
[11]
Id., at 10.
[12]
Ibid.
[13]
Ibid.
[14]
[15]
Id., at 17.
[16]
Rollo, G.R. No. 159085, p. 45; Rollo, G.R. No. 159103, p. 23; Rollo, G.R.
No. 159185, p. 22; Rollo, G.R. No. 159186, p. 41.
[17]
Rollo, G.R. No. 159085, pp. 44-45; Rollo, G.R. No. 159103, pp. 2223; Rollo, G.R. No. 159185, pp. 21-22; Rollo, G.R. No. 159186, pp.
40-41.
[18]
[19]
Alunan III v. Mirasol, G.R. No. 108399, July 31, 1997, 276 SCRA 501.
[20]
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 757, 762.
[21]
Supra.
[22]
[23]
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15,
2000, 338 SCRA 81.
[24]
[25]
[3]
Id., at 10-12.
[26]
[4]
Id., at 13-14.
[27]
Id., at 139.
[28]
[5]
61
[29]
[30]
[31]
[32]
Ibid.
[33]
[34]
[35]
Id., at 91.
[36]
Id., at 92.
[37]
Ibid.
[38]
Milton, at 91-92.
[39]
Id., at 109.
[40]
Ibid.
[41]
Ibid.
[42]
[43]
Milton, at 110.
[44]
[45]
[46]
[47]
[48]
[49]
[50]
Id., at 1103.
Milton, at 110. In An Autobiography, Roosevelt wrote:
The most important factor in getting the right spirit in my Administration, next
to the insistence upon courage, honesty, and a genuine democracy
of desire to serve the plain people, was my insistence upon the
theory that the executive power was limited only by specific
restrictions and prohibitions appearing in the Constitution or
imposed by the Congress under its Constitutional powers. My view
was that every executive officer, and above all, executive officer in
high position was a steward of the people, and not to content
himself with the negative merit of keeping his talents undamaged in
a napkin. I declined to adopt the view that what was imperatively
necessary for the Nation could not be done by the President unless
he could find some specific authorization to do it. My belief was that
it was not only his right but his duty to do anything that the needs of
the Nation demanded unless such action was forbidden by the
Constitution or by the laws. Under this interpretation of the
executive power, I did and caused to be done many things not
previously done by the President and the heads of the
Departments. I did not usurp power, but I did greatly broaden the
use of executive power. In other words, I acted for the public
welfare, I acted for the common well-being of all our people,
whenever and in whatever manner was necessary, unless
prevented by direct constitutional or legislative prohibition. I did not
care a rap for the mere form and show of power; I cared immensely
for the use that could be made of the substance. [An
Autobiography, 389 (1913) New York.]
William Howard Taft took the opposite view. He opined that the President
can exercise no power which cannot be fairly and reasonably
traced to some specific grant of power or justly implied and included
within such express grant as proper and necessary to its
exercise. Such specific grant must be either in the Constitution or in
an act of Congress passed in pursuance thereof. There is no
undefined residuum of power which he can exercise because it
seems to be in the public interest. 50 (Our Chief Magistrate and His
Powers, 139-142 (1916) New York.) Later, however, Taft, as Chief
Justice, would change his view.See Myers v. United States, 272 US
52, 71 L Ed 160, 47 SC 21 (1926), holding that The words of 2,
following the general grant of executive power under 1 were either
an enumeration of specific functions of the Executive, not all
inclusive, or were limitations upon the general grant of the
executive power, and as such, being limitations, should not be
enlarged beyond the words used.
62
[51]
Milton, at 179.
[64]
[52]
The State may, in the interest of national welfare and defense, establish
and operate industries and means of transportation and
communication, and upon payment of just compensation, transfer
to public ownership utilities and other private enterprises to be
operated by the Government.
[65]
[53]
[54]
[55]
[56]
[57]
Marcos v. Manglapus, G.R. No. 88211, October 27, 1989, 178 SCRA 760,
763-764.
[58]
[59]
Ibid.
[60]
Ibid.
[61]
[62]
[63]
Arugeo, THE
FRAMING
OF
CONVENTION 397 (1949) Manila.
THE
CONSTITUTIONAL
EN BANC
G.R. No. 164978 October 13, 2005
63
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition1 with a prayer for the
issuance of a writ of preliminary injunction to declare unconstitutional
the appointments issued by President Gloria Macapagal-Arroyo
("President Arroyo") through Executive Secretary Eduardo R. Ermita
("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr.,
Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto
G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents") as
acting secretaries of their respective departments. The petition also
seeks to prohibit respondents from performing the duties of
department secretaries.
Florencio B. Abad
Education
23 August 2004
National Defense
23 August 2004
Rene C. Villa
Agrarian Reform
23 August 2004
Antecedent Facts
Joseph H. Durano
Tourism
23 August 2004
23 August 2004
Appointee
Department
Date of
Appointment
Arthur C. Yap
Agriculture
15 August 2004
By virtue hereof, you may qualify and enter upon the performance of
the duties and functions of the office, furnishing this Office and the
Civil Service Commission with copies of your Oath of Office.
Alberto G. Romulo
Foreign Affairs
23 August 2004
Raul M. Gonzalez
Justice
23 August 2004
(signed)
Gloria Arroyo
64
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because
President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately after the
recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already
done.4 However, as an exception to the rule on mootness, courts will
decide a question otherwise moot if it is capable of repetition yet
evading review.5
In the present case, the mootness of the petition does not bar its
resolution. The question of the constitutionality of the Presidents
appointment of department secretaries in an acting capacity while
Congress is in session will arise in every such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the
legislature may not interfere with the exercise of this executive power
except in those instances when the Constitution expressly allows it to
interfere.6 Limitations on the executive power to appoint are
construed strictly against the legislature.7 The scope of the
legislatures interference in the executives power to appoint is limited
to the power to prescribe the qualifications to an appointive office.
Congress cannot appoint a person to an office in the guise of
prescribing qualifications to that office. Neither may Congress
impose on the President the duty to appoint any particular person to
an office.8
65
On Petitioners Standing
The Solicitor General states that the present petition is a quo
warranto proceeding because, with the exception of Secretary
Ermita, petitioners effectively seek to oust respondents for unlawfully
exercising the powers of department secretaries. The Solicitor
General further states that petitioners may not claim standing as
Senators because no power of the Commission on Appointments has
been "infringed upon or violated by the President. xxx If at all, the
Commission on Appointments as a body (rather than individual
members of the Congress) may possess standing in this case." 10
Petitioners, on the other hand, state that the Court can exercise
its certiorari jurisdiction over unconstitutional acts of the
President.11 Petitioners further contend that they possess standing
because President Arroyos appointment of department secretaries in
an acting capacity while Congress is in session impairs the powers of
Congress. Petitioners cite Sanlakas v. Executive Secretary12 as
basis, thus:
66
67
68
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
REYNATO S. PUNO
ARTEMIO V. PANGANIBAN
Associate Justice
Associate Justice
LEONARDO A. QUISUMBING
CONSUELO YNARES-SANTIAGO
Associate Justice
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Associate Justice
RENATO C. CORONA
CONCHITA CARPIO MORALES
Associate Justice
Associate Justice
ROMEO J. CALLEJO, SR.
ADOLFO S. AZCUNA
Associate Justice
Associate Justice
DANTE O. TINGA
MINITA V. CHICO-NAZARIO
Associate Justice
Associate Justice
CANCIO C. GARCIA
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.
HILARIO G. DAVIDE, JR.
Rollo, p. 38.
11
Ibid., p. 65.
12
Chief Justice
13
Rollo, p. 14.
Footnotes
14
15
16
69
17
BELLOSILLO, J.:
18
EN BANC
All thirty-five (35) petitioners in this Special Civil Action for Prohibition
and Mandamus with Prayer for Preliminary Injunction and/or
Restraining Order seek to enjoin the Presidential Commission on
Good Government (PCGG) from proceeding with the auction sale
scheduled on 11 January 1991 by Christie's of New York of the Old
Masters Paintings and 18th and 19th century silverware seized from
Malacaang and the Metropolitan Museum of Manila and placed in
the custody of the Central Bank.
The antecedents: On 9 August 1990, Mateo A.T. Caparas, then
Chairman of PCGG, wrote then President Corazon C. Aquino,
requesting her for authority to sign the proposed Consignment
Agreement between the Republic of the Philippines through PCGG
and Christie, Manson and Woods International, Inc. (Christie's of
New York, or CHRISTIE'S) concerning the scheduled sale on 11
January 1991 of eighty-two (82) Old Masters Paintings and antique
silverware seized from Malacaang and the Metropolitan Museum of
Manila alleged to be part of the ill-gotten wealth of the late President
Marcos, his relatives and cronies.
On 14 August 1990, then President Aquino, through former Executive
Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to
sign the Consignment Agreement allowing Christie's of New York to
auction off the subject art pieces for and in behalf of the Republic of
the Philippines.
On 15 August 1990, PCGG, through Chairman Caparas,
representing the Government of the Republic of the Philippines,
signed the Consignment Agreement with Christie's of New York.
According to the agreement, PCGG shall consign to CHRISTIE'S for
sale at public auction the eighty-two (82) Old Masters Paintings then
found at the Metropolitan Museum of Manila as well as the silverware
contained in seventy-one (71) cartons in the custody of the Central
Bank of the Philippines, and such other property as may
70
71
72
73
74
SO ORDERED.
# Footnotes
1 Rollo, pp. 55-66.
16 See Note 6.
4 Rollo, p. 186.
5 Ibid.
6 Cruz, Isagani A., Philippine Political Law, 1991 ed.,
p. 235; Dumlao v. Commission on Elections, G.R.
No. L- 50245, 22 January 1980, 95 SCRA 392.
7 Sustiguer v. Tamayo, G.R. No. L-29341, 21 August
1989, 176 SCRA 579.
75
EN BANC
G.R. No. 155001
76
x-------------------------x
RESOLUTION
G.R. No. 155661 January 21, 2004
PUNO, J.:
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B.
VALENCIA, MA. TERESA V. GAERLAN, LEONARDO DE LA
ROSA, DINA C. DE LEON, VIRGIE CATAMIN, RONALD
SCHLOBOM, ANGELITO SANTOS, MA. LUISA M. PALCON and
SAMAHANG MANGGAGAWA SA PALIPARAN NG PILIPINAS
(SMPP), petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC.,
MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT
OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY
Before this Court are the separate Motions for Reconsideration filed
by respondent Philippine International Air Terminals Co., Inc.
(PIATCO), respondents-intervenors Jacinto V. Paras, Rafael P.
Nantes, Eduardo C. Zialcita, Willie Buyson Villarama, Prospero C.
Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing
O. Macaranbon, all members of the House of Representatives
(Respondent Congressmen),1 respondents-intervenors who are
employees of PIATCO and other workers of the Ninoy Aquino
International Airport International Passenger Terminal III (NAIA IPT
77
78
cases at bar are special civil actions for certiorari and prohibition,
they contend that the principle of hierarchy of courts precludes this
Court from taking primary jurisdiction over them.
We are not persuaded.
There is a question of fact when doubt or difference arises as to the
truth or falsity of the facts alleged.5 Even a cursory reading of the
cases at bar will show that the Court decided them by interpreting
and applying the Constitution, the BOT Law, its Implementing Rules
and other relevant legal principles on the basis of clearly
undisputed facts. All the operative facts were settled, hence, there
is no need for a trial type determination of their truth or falsity by a
trial court.
We reject the unyielding insistence of PIATCO Employees that the
following factual issues are critical and beyond the capability of this
Court to resolve, viz: (a) whether the National Economic
Development Authority- Investment Coordinating Committee (NEDAICC) approved the Supplements; (b) whether the First Supplement
created ten (10) new financial obligations on the part of the
government; and (c) whether the 1997 Concession Agreement
departed from the draft Concession Agreement contained in the Bid
Documents.6
The factual issue of whether the NEDA-ICC approved the
Supplements is hardly relevant. It is clear in our Decision that the
PIATCO contracts were invalidated on other and more substantial
grounds. It did not rely on the presence or absence of NEDA-ICC
approval of the Supplements. On the other hand, the last two issues
do not involve disputed facts. Rather, they involve contractual
provisions which are clear and categorical and need only to be
interpreted. The interpretation of contracts and the determination of
whether their provisions violate our laws or contravene any
public policy is a legal issue which this Court may properly pass
upon.
Respondents corollary contention that this Court violated
the hierarchy of courts when it entertained the cases at bar must
also fail. The rule on hierarchy of courts in cases falling within the
concurrent jurisdiction of the trial courts and appellate courts
generally applies to cases involving warring factual allegations. For
this reason, litigants are required to repair to the trial courts at the
first instance to determine the truth or falsity of these contending
allegations on the basis of the evidence of the parties. Cases which
depend on disputed facts for decision cannot be brought immediately
before appellate courts as they are not triers of facts.
It goes without saying that when cases brought before the appellate
courts do not involve factual but legal questions, a strict application
of the rule of hierarchy of courts is not necessary. As the cases at bar
merely concern the construction of the Constitution, the interpretation
of the BOT Law and its Implementing Rules and Regulations on
undisputed contractual provisions and government actions, and as
the cases concern public interest, this Court resolved to take primary
jurisdiction over them. This choice of action follows the consistent
stance of this Court to settle any controversy with a high public
interest component in a single proceeding and to leave no root or
branch that could bear the seeds of future litigation. The suggested
remand of the cases at bar to the trial court will stray away from this
policy.7
b. Legal Standing
Respondent PIATCO stands pat with its argument that petitioners
lack legal personality to file the cases at bar as they are not real
parties in interest who are bound principally or subsidiarily to the
PIATCO Contracts. Further, respondent PIATCO contends that
petitioners failed to show any legally demandable or enforceable
right to justify their standing to file the cases at bar.
These arguments are not difficult to deflect. The determination of
whether a person may institute an action or become a party to a suit
brings to fore the concepts of real party in interest, capacity to sue
and standing to sue. To the legally discerning, these three concepts
are different although commonly directed towards ensuring that only
certain parties can maintain an action.8 As defined in the Rules of
Court, a real party in interest is the party who stands to be benefited
79
or injured by the judgment in the suit or the party entitled to the avails
of the suit.9 Capacity to sue deals with a situation where a person
who may have a cause of action is disqualified from bringing a suit
under applicable law or is incompetent to bring a suit or is under
some legal disability that would prevent him from maintaining an
action unless represented by a guardian ad litem. Legal standing is
relevant in the realm of public law. In certain instances, courts have
allowed private parties to institute actions challenging the validity of
governmental action for violation of private rights or constitutional
principles.10 In these cases, courts apply the doctrine of legal
standing by determining whether the party has a direct and
personal interest in the controversy and whether such party has
sustained or is in imminent danger of sustaining an injury as a
result of the act complained of, a standard which is distinct from
the concept of real party in interest.11 Measured by this yardstick, the
application of the doctrine on legal standing necessarily involves a
preliminary consideration of the merits of the case and is not purely a
procedural issue.12
Considering the nature of the controversy and the issues raised in
the cases at bar, this Court affirms its ruling that the petitioners have
the requisite legal standing. The petitioners in G.R. Nos. 155001 and
155661 are employees of service providers operating at the existing
international airports and employees of MIAA while petitionersintervenors are service providers with existing contracts with MIAA
and they will all sustain direct injury upon the implementation of the
PIATCO Contracts. The 1997 Concession Agreement and the ARCA
both provide that upon the commencement of operations at the NAIA
IPT III, NAIA Passenger Terminals I and II will cease to be used as
international passenger terminals.13 Further, the ARCA provides:
(d) For the purpose of an orderly transition, MIAA shall not
renew any expired concession agreement relative to any
service or operation currently being undertaken at the Ninoy
Aquino International Airport Passenger Terminal I, or extend
any concession agreement which may expire subsequent
hereto, except to the extent that the continuation of the
existing services and operations shall lapse on or before the
In-Service Date.14
80
81
82
III
Concession Agreement
Again, we brightline the principle that in public bidding, bids are
submitted in accord with the prescribed terms, conditions and
parameters laid down by government and pursuant to the
requirements of the project bidded upon. In light of these parameters,
bidders formulate competing proposals which are evaluated to
determine the bid most favorable to the government. Once the
contract based on the bid most favorable to the government is
awarded, all that is left to be done by the parties is to execute the
necessary agreements and implement them. There can be no
substantial or material change to the parameters of the project,
including the essential terms and conditions of the contract bidded
upon, after the contract award. If there were changes and the
contracts end up unfavorable to government, the public bidding
becomes a mockery and the modified contracts must be struck
down.
Respondents insist that there were no substantial or material
amendments in the 1997 Concession Agreement as to the technical
aspects of the project, i.e., engineering design, technical soundness,
operational and maintenance methods and procedures of the project
or the technical proposal of PIATCO. Further, they maintain that
there was no modification of the financial features of the project, i.e.,
83
84
85
86
of all the debts, including all interest, fees and charges, that
respondent PIATCO incurred in pursuance of the NAIA IPT III
Project. This reading is consistent with section 4.04 of the ARCA
itself which states that the Government "shall make a termination
payment to Concessionaire [PIATCO] equal to the Appraised Value
(as hereinafter defined) of the Development Facility [NAIA Terminal
III] or the sum of the Attendant Liabilities, if greater." For sure,
respondent PIATCO will not receive any amount less than
sufficient to cover its debts, regardless of whether or not the
value of NAIA IPT III, at the time of its turn over to the
Government, may actually be less than the amount of PIATCOs
debts. The scheme is a form of direct government guarantee for it is
undeniable that it leaves the government no option but to pay the
"attendant liabilities" in the event that the Senior Lenders are unable
or unwilling to appoint a qualified nominee or transferee as a result of
PIATCOs default in the payment of its Senior Loans. As we stressed
in our Decision, this Court cannot depart from the legal maxim that
"those that cannot be done directly cannot be done indirectly."
This is not to hold, however, that indirect government guarantee is
not allowed under the BOT Law, as amended. The intention to permit
indirect government guarantee is evident from the Senate
deliberations on the amendments to the BOT Law. The idea is to
allow for reasonable government undertakings, such as to authorize
the project proponent to undertake related ventures within the project
area, in order to encourage private sector participation in
development projects.48 An example cited by then Senator Gloria
Macapagal-Arroyo, one of the sponsors of R.A. No. 7718, is the
Mandaluyong public market which was built under the Build-andTransfer ("BT") scheme wherein instead of the government paying
for the transfer, the project proponent was allowed to operate the
upper floors of the structure as a commercial mall in order to recoup
their investments.49 It was repeatedly stressed in the deliberations
that in allowing indirect government guarantee, the law seeks to
encourage both the government and the private sector to formulate
reasonable and innovative government undertakings in pursuance of
BOT projects. In no way, however, can the government be made
liable for the debts of the project proponent as this would be
tantamount to a direct government guarantee which is prohibited by
the law. Such liability would defeat the very purpose of the BOT Law
87
The resolution of the issue hinged on the following: (1) whether the
conditions precedent to the perfection of the contract were complied
with; (2) whether there is a valid notice of award; and (3) whether the
signature of the Secretary of the Department of Environment and
Natural Resources is sufficient to bind the Government. These issue
and sub-issues are clearly distinguishable and different. For one, the
issue of direct government guarantee was not considered by this
Court when it held the JANCOM contract valid, yet, it is a key reason
for invalidating the PIATCO Contracts. It is a basic principle in law
that cases with dissimilar facts cannot have similar disposition.
This Court, however, is not unmindful of the reality that the structures
comprising the NAIA IPT III facility are almost complete and that
funds have been spent by PIATCO in their construction. For the
government to take over the said facility, it has to compensate
respondent PIATCO as builder of the said structures. The
compensation must be just and in accordance with law and equity for
the government can not unjustly enrich itself at the expense of
PIATCO and its investors.
II.
Temporary takeover of business affected with public interest in
times of national emergency
Section 17, Article XII of the 1987 Constitution grants the State in
times of national emergency the right to temporarily take over the
operation of any business affected with public interest. This right is
an exercise of police power which is one of the inherent powers of
the State.
Police power has been defined as the "state authority to enact
legislation that may interfere with personal liberty or property in order
to promote the general welfare."54 It consists of two essential
elements. First, it is an imposition of restraint upon liberty or property.
Second, the power is exercised for the benefit of the common good.
Its definition in elastic terms underscores its all-encompassing and
comprehensive embrace.55 It is and still is the "most essential,
insistent, and illimitable"56 of the States powers. It is familiar
knowledge that unlike the power of eminent domain, police
88
Section 19, Article XII of the 1987 Constitution mandates that the
State prohibit or regulate monopolies when public interest so
requires. Monopolies are not per se prohibited. Given its
susceptibility to abuse, however, the State has the bounden duty to
regulate monopolies to protect public interest. Such regulation may
be called for, especially in sensitive areas such as the operation of
the countrys premier international airport, considering the public
interest at stake.
By virtue of the PIATCO contracts, NAIA IPT III would be the only
international passenger airport operating in the Island of Luzon, with
the exception of those already operating in Subic Bay Freeport
Special Economic Zone ("SBFSEZ"), Clark Special Economic Zone
("CSEZ") and in Laoag City. Undeniably, the contracts would create a
monopoly in the operation of an international commercial passenger
airport at the NAIA in favor of PIATCO.
Id.
89
17
Id. at p. 3098.
18
19
20
Section 2, Rule 3.
10
11
13
23
Emphasis supplied.
24
16
90
33
35
36
...
25
27
29
30
31
32
37
91
38
40
Id. at p. 3071.
41
42
92
46
47
Emphasis supplied.
48
49
Id. at 455-456.
50
53
54
Id.
56
93
by Cruz, I.A., Constitutional Law; 4th ed., p. 42, Smith, Bell &
Co. v. Natividad, 40 Phil. 136, U.S. v. Toribio, 15 Phil. 85,
Churchill and Tait v. Rafferty, 32 Phil. 580, and Rubi v.
Provincial Board of Mindoro, 39 Phil. 660; Florentian A.
Lozano v. Antonio M. Martinez, G.R. No. L-63419, December
18, 1986; Alejandro Melchor, Jr. v. Jose L. Moya, et al., G.R.
No. L-35256, March 17, 1983; 206 Phil 1; Ichong vs.
Hernandez, L-7995, May 31, 1957.
57
61
Rollo
61
62
Id.
63
94
DECISION
CHICO-NAZARIO, J.:
Can the Commission on Human Rights lawfully implement an
upgrading and reclassification of personnel positions without the
prior approval of the Department of Budget and Management?
95
96
On 19 October 1998, CHR issued Resolution No. A980555 providing for the upgrading or raising of salary grades of the
following positions in the Commission:
Number
of
Number
of
Positions
Position
Position Title
Title
Positions
Salary Grade
Salary
Grade
From
Security
Officer IITo
(Coterminous)
12
15
Total Salary
Requirements
Cashier III
Cashier V
18
24
51,756.00
Information
Officer V
Director IV
24
28
36,744.006
Total Salary
Requirements
From
To
684,780.00
28
Attorney VI
Director IV
(In the
Regional
Field Offices)
26
Director III
Director IV
27
28
38,928.00
Financial &
Director IV
Management
Officer II
24
28
36,744.00
Budget
Officer III
18
24
51,756.00
18
24
51,756.00
Budget Officer
IV
P229,104.00
A. Creation
B. Upgrading
Number
of
Positions
Position Title
From
To
Salary
Grade
From
To
Total Salary
Requirements
Attorney V Director IV
25
28
P28,092.00
Security
Officer I
11
15
57,456.00
Security
Officer II
97
----------------
Total 3
P 85,548.007
98
99
100
101
102
103
104
Footnotes
Rollo, pp. 36-50; Penned by Associate Justice Conrado M.
Vasquez, Jr., with Associate Justices Andres B. Reyes, Jr. and
Amelita G. Tolentino, concurring.
1
Id. at 37.
105
Id. at 51-52.
27
Id. at 53-56.
28
Id. at 54.
Id.
Id. at 55.
Id. at 57.
Id. at 62-63.
10
Id. at 37.
11
Id. at 47.
12
Id. at 19-20.
G.R. No. 113079, 20 April 2001, 357 SCRA 30, citing Nestle v.
Court of Appeals, G.R. No. 86738, 13 November 1991, 203 SCRA
504.
EN BANC
15
16
17
18
19
20
Rollo, p. 46.
Id.; Bengzon v. Drilon, G.R. No. 103524, 15 April 1992, 208 SCRA
133.
23
24
Id.
25
Rollo, p. 63.
106
CHICO-NAZARIO, J.:
Petitioners, composed of ten (10) labor unions, call upon this Court
to exercise its power of judicial review to declare as unconstitutional
an executive order assailed to be in derogation of the constitutional
doctrine of separation of powers.
In an original action for certiorari, petitioners invoke their status as
labor unions and as taxpayers whose rights and interests are
allegedly violated and prejudiced by Executive Order No. 185 dated
10 March 2003 whereby administrative supervision over the National
Labor Relations Commission (NLRC), its regional branches and all
its personnel including the executive labor arbiters and labor arbiters
was transferred from the NLRC Chairperson to the Secretary of
Labor and Employment. In support of their position, 1 petitioners
argue that the NLRC -- created by Presidential Decree No. 442,
otherwise known as the Labor Code, during Martial Law was an
integral part of the Department (then Ministry) of Labor and
Employment (DOLE) under the administrative supervision of the
Secretary of Justice. During the time of President Corazon C.
Aquino, and while she was endowed with legislative functions after
EDSA I, Executive Order No. 2922 was issued whereby the NLRC
became an agency attached to the DOLE for policy and program
coordination and for administrative supervision. On 02 March 1989,
Article 213 of the Labor Code was expressly amended by Republic
Act No. 6715 declaring that the NLRC was to be attached to the
DOLE for program and policy coordination only while the
administrative supervision over the NLRC, its regional branches and
personnel, was turned over to the NLRC Chairman. The subject E.O.
No. 185, in authorizing the Secretary of Labor to exercise
administrative supervision over the NLRC, its regional branches and
personnel, allegedly reverted to the pre-Rep. Act No. 6715 set-up,
amending the latter law which only Congress can do.
The respondents herein, as represented by the Office of the Solicitor
General, opposed the petition on procedural3and
substantive4 grounds. Procedurally, it is alleged that the petition does
not pose an actual case or controversy upon which judicial review
may be exercised as petitioners have not specifically cited how E.O.
No. 185 has prejudiced or threatened to prejudice their rights and
107
108
109
The question is, does the issue posed in this petition meet the
exacting standard required for this Court to take the liberal approach
and recognize the standing of herein petitioners?
The instant petition fails to persuade us.
The subject matter of E.O. No. 185 is the grant of authority by the
President to the Secretary of Labor to exercise administrative
supervision over the NLRC, its regional branches and all its
personnel, including the Executive Labor Arbiters and Labor Arbiters.
Its impact, sans the challenge to its constitutionality, is thereby
limited to the departments to which it is addressed. Taking our cue
from the early case of Olsen v. Herstein and Rafferty,18 the subject
executive order can be considered as nothing more or less than a
command from a superior to an inferior. It creates no relation except
between the official who issued it and the officials who received it. It
has for its object simply the efficient and economical administration
of the affairs of the department to which it is issued in accordance
with the law governing the subject matter. Administrative in its nature,
the subject order does not pass beyond the limits of the departments
to which it is directed, hence, it has not created any rights in third
persons, not even in the fifty thousand or so union members being
110
Footnotes
1
Id. at 11-20.
Id. at 69-76.
...
A lesser but not insignificant reason for screening the standing of
persons who desire to litigate constitutional issues is economic in
character. Given the sparseness of our resources, the capacity of
courts to render efficient judicial service to our people is severely
limited. For courts to indiscriminately open their doors to all types of
suits and suitors is for them to unduly overburden their dockets, and
ultimately render themselves ineffective dispensers of justice. To be
sure, this is an evil that clearly confronts our judiciary today.
Ibid.
SO ORDERED.
111
13
15
Ibid.
16
Ibid.
EN BANC
G.R. No. L-5279
112
113
114
xxx
xxx
supervision and subject to regulation by the State." (Art. XIV, sec. 5.)
The power to regulate establishments or business occupations
implies the power to require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to
revoke such permit on account of violation of rules or regulations of
the Department.
II. This brings us to the petitioners' third proposition that the
questioned statutes "conferring on the Secretary of Education
unlimited power and discretion to prescribe rules and standards
constitute an unlawful delegation of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which,
as amended, provides:
It shall be the duty of the Secretary of Public Instruction to
maintain a general standard of efficiency in all private
schools and colleges of the Philippines so that the same
shall furnish adequate instruction to the public, in
accordance with the class and grade of instruction given in
them, and for this purpose said Secretary or his duly
authorized representative shall have authority to advise,
inspect, and regulate said schools and colleges in order to
determine the efficiency of instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description,
either general or specific, of what constitutes a 'general standard of
efficiency.' Nowhere in this Act is there any indication of any basis or
condition to ascertain what is 'adequate instruction to the public.'
Nowhere in this Act is there any statement of conditions, acts, or
factors, which the Secretary of Education must take into account to
determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which
provides:
The Department of Education shall from time to time prepare
and publish in pamphlet form the minimum standards
115
True, the petitioners assert that, the Secretary has issued rules and
regulations "whimsical and capricious" and that such discretionary
power has produced arrogant inspectors who "bully heads and
teachers of private schools." Nevertheless, their remedy is to
challenge those regulations specifically, and/or to ring those
inspectors to book, in proper administrative or judicial proceedings
not to invalidate the law. For it needs no argument, to show that
abuse by the officials entrusted with the execution of a statute does
not per se demonstrate the unconstitutionality of such statute.
Anyway, we find the defendants' position to be sufficiently sustained
by the decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon
holding the statute that authorized the Director of Agriculture
to "designate standards for the commercial grades of abaca, maguey
and sisal" against vigorous attacks on the ground of invalid
delegation of legislative power.
Indeed "adequate and efficient instruction" should be considered
sufficient, in the same way as "public welfare" "necessary in the
interest of law and order" "public interest" and "justice and equity and
substantial merits of the case" have been held sufficient as legislative
standards justifying delegation of authority to regulate. (See Taada
and Fernando, Constitution of the Philippines, p. 793, citing
Philippine cases.)
On this phase of the litigation we conclude that there has been no
undue delegation of legislative power.
In this connection, and to support their position that the law and the
Secretary of Education have transcended the governmental power of
supervision and regulation, the petitioners appended a list of
circulars and memoranda issued by the said Department. However
they failed to indicate which of such official documents was
constitutionally objectionable for being "capricious," or pain
"nuisance"; and it is one of our decisional practices that unless a
constitutional point is specifically raised, insisted upon and
adequately argued, the court will not consider it. (Santiago vs. Far
Eastern, 73 Phil., 408.)
116
We are told that such list will give an idea of how the statute has
placed in the hands of the Secretary of Education complete control of
the various activities of private schools, and why the statute should
be struck down as unconstitutional. It is clear in our opinion that the
statute does not in express terms give the
Secretary completecontrol. It gives him powers to inspect private
schools, to regulate their activities, to give them official permits to
operate under certain conditions, and to revoke such permits for
cause. This does not amount to complete control. If any of such
Department circulars or memoranda issued by the Secretary go
beyond the bounds of regulation and seeks to
establish complete control, it would surely be invalid. Conceivably
some of them are of this nature, but besides not having before us the
text of such circulars, the petitioners have omitted to specify. In any
event with the recent approval of Republic Act No. 1124 creating the
National Board of Education, opportunity for administrative correction
of the supposed anomalies or encroachments is amply afforded
herein petitioners. A more expeditious and perhaps more technically
competent forum exists, wherein to discuss the necessity,
convenience or relevancy of the measures criticized by them. (See
also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control
over private schools, the question arises whether the power of
supervision and regulation granted to the State by section 5 Article
XIV was meant to include control of private educational institutions. It
is enough to point out that local educators and writers think the
Constitution provides for control of Education by the State. (See
Tolentino, Government of the Philippine Constitution, Vol. II, p. 615;
Benitez, Philippine Social Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational
institutions" even as it enumerates certain fundamental objectives of
all education to wit, the development of moral character, personal
discipline, civic conscience and vocational efficiency, and instruction
in the duties of citizenship. (Malcolm & Laurel, Philippine
Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power
to regulate means power to control, and quotes from the proceedings
117
paid the suit, it is one against the State without its consent. Anyway
he concludes, the action involving "the legality of any tax impost or
assessment" falls within the original jurisdiction of Courts of First
Instance.
There are good grounds in support of Government's position. If this
levy of 1 per cent is truly a mere feeand not a taxto finance the
cost of the Department's duty and power to regulate and supervise
private schools, the exaction may be upheld; but such point involves
investigation and examination of relevant data, which should best be
carried out in the lower courts. If on the other hand it is a tax,
petitioners' issue would still be within the original jurisdiction of the
Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act
No. 139 which in its section 1 provides:
The textbooks to be used in the private schools recognized
or authorized by the government shall be submitted to the
Board (Board of Textbooks) which shall have the power to
prohibit the use of any of said textbooks which it may find to
be against the law or to offend the dignity and honor of the
government and people of the Philippines, or which it may
find to be against the general policies of the government, or
which it may deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest
form". They cite two U. S. cases (Miss. and Minnesota) outlawing
statutes that impose previous restraints upon publication of
newspapers, or curtail the right of individuals to disseminate
teachings critical of government institutions or policies.
Herein lies another important issue submitted in the cause. The
question is really whether the law may be enacted in the exercise of
the State's constitutional power (Art. XIV, sec. 5) to supervise and
regulate private schools. If that power amounts to control of private
schools, as some think it is, maybe the law is valid. In this connection
we do not share the belief that section 5 has added new power to
what the State inherently possesses by virtue of the police power. An
118
Footnotes
EN BANC
1
July 9, 2002
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of
preliminary injunction and a temporary restraining order. The petition
seeks to compel the Public Estates Authority ("PEA" for brevity) to
disclose all facts on PEA's then on-going renegotiations with Amari
Coastal Bay and Development Corporation ("AMARI" for brevity) to
reclaim portions of Manila Bay. The petition further seeks to enjoin
PEA from signing a new agreement with AMARI involving such
reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner
of Public Highways, signed a contract with the Construction and
Development Corporation of the Philippines ("CDCP" for brevity) to
reclaim certain foreshore and offshore areas of Manila Bay. The
contract also included the construction of Phases I and II of the
119
120
transfer to AMARI under the JVA are lands of the public domain
which the government has not classified as alienable lands and
therefore PEA cannot alienate these lands; (2) the certificates of title
covering the Freedom Islands are thus void, and (3) the JVA itself is
illegal.
On December 5, 1997, then President Fidel V. Ramos issued
Presidential Administrative Order No. 365 creating a Legal Task
Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force
were the Secretary of Justice,8 the Chief Presidential Legal
Counsel,9 and the Government Corporate Counsel.10 The Legal Task
Force upheld the legality of the JVA, contrary to the conclusions
reached by the Senate Committees.11
On April 4 and 5, 1998, the Philippine Daily
Inquirer and Today published reports that there were on-going
renegotiations between PEA and AMARI under an order issued by
then President Fidel V. Ramos. According to these reports, PEA
Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy
Officer Sergio Cruz composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court
a Petition for Prohibition with Application for the Issuance of a
Temporary Restraining Order and Preliminary Injunction docketed as
G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the
petition "for unwarranted disregard of judicial hierarchy, without
prejudice to the refiling of the case before the proper court." 12
On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity)
as a taxpayer, filed the instant Petition for Mandamus with Prayer for
the Issuance of a Writ of Preliminary Injunction and Temporary
Restraining Order. Petitioner contends the government stands to
lose billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any
renegotiation of the JVA, invoking Section 28, Article II, and Section
7, Article III, of the 1987 Constitution on the right of the people to
information on matters of public concern. Petitioner assails the sale
to AMARI of lands of the public domain as a blatant violation of
121
122
made the cases moot, the Court did not hesitate to resolve the legal
or constitutional issues raised to formulate controlling principles to
guide the bench, bar, and the public.17
Also, the instant petition is a case of first impression. All previous
decisions of the Court involving Section 3, Article XII of the 1987
Constitution, or its counterpart provision in the 1973
Constitution,18 covered agricultural lands sold to private
corporations which acquired the lands from private parties. The
transferors of the private corporations claimed or could claim the
right to judicial confirmation of their imperfect titles19 under Title
II of Commonwealth Act. 141 ("CA No. 141" for brevity). In the instant
case, AMARI seeks to acquire from PEA, a public corporation,
reclaimed lands and submerged areas for nonagricultural purposes by purchase under PD No. 1084 (charter of
PEA) and Title III of CA No. 141. Certain undertakings by AMARI
under the Amended JVA constitute the consideration for the
purchase. Neither AMARI nor PEA can claim judicial confirmation of
their titles because the lands covered by the Amended JVA are newly
reclaimed or still to be reclaimed. Judicial confirmation of imperfect
title requires open, continuous, exclusive and notorious occupation of
agricultural lands of the public domain for at least thirty years since
June 12, 1945 or earlier. Besides, the deadline for filing applications
for judicial confirmation of imperfect title expired on December 31,
1987.20
Lastly, there is a need to resolve immediately the constitutional issue
raised in this petition because of the possible transfer at any time by
PEA to AMARI of title and ownership to portions of the reclaimed
lands. Under the Amended JVA, PEA is obligated to transfer to
AMARI the latter's seventy percent proportionate share in the
reclaimed areas as the reclamation progresses. The Amended JVA
even allows AMARI to mortgage at any time the entire reclaimed
area to raise financing for the reclamation project. 21
Second issue: whether the petition merits dismissal for failing
to observe the principle governing the hierarchy of courts.
123
124
125
126
127
acquired and owned all lands and territories in the Philippines except
those he disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian
doctrine substituting, however, the State, in lieu of the King, as the
owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land
ownership that "all lands that were not acquired from the
Government, either by purchase or by grant, belong to the public
domain."43 Article 339 of the Civil Code of 1889, which is now Article
420 of the Civil Code of 1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law
governing the ownership and disposition of reclaimed lands in the
Philippines. On May 18, 1907, the Philippine Commission enacted
Act No. 1654 which provided for the lease, but not the sale, of
reclaimed lands of the government to corporations and
individuals. Later, on November 29, 1919, the Philippine Legislature
approved Act No. 2874, the Public Land Act, which authorized the
lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. On November 7, 1936, the National
Assembly passed Commonwealth Act No. 141, also known as the
Public Land Act, whichauthorized the lease, but not the sale, of
reclaimed lands of the government to corporations and
individuals. CA No. 141 continues to this day as the general law
governing the classification and disposition of lands of the public
domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves,
inlets and all waters within the maritime zone of the Spanish territory
belonged to the public domain for public use.44 The Spanish Law of
Waters of 1866 allowed the reclamation of the sea under Article 5,
which provided as follows:
128
129
xxx
Act No. 1654 mandated that the government should retain title to
all lands reclaimed by the government. The Act also vested in the
government control and disposition of foreshore lands. Private
parties could lease lands reclaimed by the government only if these
lands were no longer needed for public purpose. Act No. 1654
mandatedpublic bidding in the lease of government reclaimed
lands. Act No. 1654 made government reclaimed lands sui
generis in that unlike other public lands which the government could
sell to private parties, these reclaimed lands were available only for
lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law
of Waters of 1866. Act No. 1654 did not prohibit private parties from
reclaiming parts of the sea under Section 5 of the Spanish Law of
Waters. Lands reclaimed from the sea by private parties with
government permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No.
2874, the Public Land Act.46 The salient provisions of Act No. 2874,
on reclaimed lands, were as follows:
"Sec. 6. The Governor-General, upon the
recommendation of the Secretary of Agriculture and
Natural Resources, shall from time to time classify the
lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
130
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c)
of section fifty-six shall be disposed of to private parties
by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the
Secretary of Agriculture and Natural Resources, shall
declare that the same are not necessary for the public
service and are open to disposition under this
chapter. The lands included in class (d) may be disposed
of by sale or lease under the provisions of this Act."
(Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to
"classify lands of the public domain into x x x alienable or
disposable"47 lands. Section 7 of the Act empowered the GovernorGeneral to "declare what lands are open to disposition or
concession." Section 8 of the Act limited alienable or disposable
lands only to those lands which have been "officially delimited and
classified."
Section 56 of Act No. 2874 stated that lands "disposable under this
title48 shall be classified" as government reclaimed, foreshore and
marshy lands, as well as other lands. All these lands, however, must
be suitable for residential, commercial, industrial or other
productive non-agricultural purposes. These provisions vested
upon the Governor-General the power to classify inalienable lands of
the public domain into disposable lands of the public domain. These
provisions also empowered the Governor-General to classify further
such disposable lands of the public domain into government
reclaimed, foreshore or marshy lands of the public domain, as well
as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable
lands of the public domain classified as government reclaimed,
foreshore and marshy lands "shall be disposed of to private
parties by lease only and not otherwise." The Governor-General,
before allowing the lease of these lands to private parties, must
formally declare that the lands were "not necessary for the public
service." Act No. 2874 reiterated the State policy to lease and not to
sell government reclaimed, foreshore and marshy lands of the public
domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui
generis, as the only alienable or disposable lands of the public
domain that the government could not sell to private parties.
The rationale behind this State policy is obvious. Government
reclaimed, foreshore and marshy public lands for non-agricultural
purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always
reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government
reclaimed, foreshore and marshy lands into other non-agricultural
lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could
sell to private parties. Thus, under Act No. 2874, the government
could not sell government reclaimed, foreshore and marshy lands to
private parties, unless the legislature passed a law allowing their
sale.49
Act No. 2874 did not prohibit private parties from reclaiming parts of
the sea pursuant to Section 5 of the Spanish Law of Waters of 1866.
Lands reclaimed from the sea by private parties with government
permission remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its
ratification by the Filipino people. The 1935 Constitution, in adopting
the Regalian doctrine, declared in Section 1, Article XIII, that
"Section 1. All agricultural, timber, and mineral lands of the
public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
131
132
133
134
135
136
137
138
139
the reclamation costs of all the other areas, totaling 592.15 hectares,
still to be reclaimed. AMARI and PEA will share, in the proportion of
70 percent and 30 percent, respectively, the total net usable area
which is defined in the Amended JVA as the total reclaimed area less
30 percent earmarked for common areas. Title to AMARI's share in
the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that
"x x x, PEA shall have the duty to execute without delay the
necessary deed of transfer or conveyance of the title
pertaining to AMARI's Land share based on the Land
Allocation Plan. PEA, when requested in writing by
AMARI, shall then cause the issuance and delivery of
the proper certificates of title covering AMARI's Land
Share in the name of AMARI, x x x; provided, that if more
than seventy percent (70%) of the titled area at any given
time pertains to AMARI, PEA shall deliver to AMARI only
seventy percent (70%) of the titles pertaining to AMARI, until
such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis
supplied)
Indisputably, under the Amended JVA AMARI will acquire and
own a maximum of 367.5 hectares of reclaimed land which will
be titled in its name.
To implement the Amended JVA, PEA delegated to the
unincorporated PEA-AMARI joint venture PEA's statutory authority,
rights and privileges to reclaim foreshore and submerged areas in
Manila Bay. Section 3.2.a of the Amended JVA states that
"PEA hereby contributes to the joint venture its rights and
privileges to perform Rawland Reclamation and Horizontal
Development as well as own the Reclamation Area, thereby
granting the Joint Venture the full and exclusive right,
authority and privilege to undertake the Project in
accordance with the Master Development Plan."
140
xxx
141
142
143
inalienable. Only when actually reclaimed from the sea can these
submerged areas be classified as public agricultural lands, which
under the Constitution are the only natural resources that the State
may alienate. Once reclaimed and transformed into public
agricultural lands, the government may then officially classify these
lands as alienable or disposable lands open to disposition.
Thereafter, the government may declare these lands no longer
needed for public service. Only then can these reclaimed lands be
considered alienable or disposable lands of the public domain and
within the commerce of man.
The classification of PEA's reclaimed foreshore and submerged
lands into alienable or disposable lands open to disposition is
necessary because PEA is tasked under its charter to undertake
public services that require the use of lands of the public domain.
Under Section 5 of PD No. 1084, the functions of PEA include the
following: "[T]o own or operate railroads, tramways and other kinds
of land transportation, x x x; [T]o construct, maintain and operate
such systems of sanitary sewers as may be necessary; [T]o
construct, maintain and operate such storm drains as may be
necessary." PEA is empowered to issue "rules and regulations as
may be necessary for the proper use by private parties of any or all
of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus,
part of the reclaimed foreshore and submerged lands held by the
PEA would actually be needed for public use or service since many
of the functions imposed on PEA by its charter constitute essential
public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA
"shall be primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of the National
Government." The same section also states that "[A]ll reclamation
projects shall be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; x x x." Thus, under
EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA became
the primary implementing agency of the National Government to
reclaim foreshore and submerged lands of the public domain. EO
No. 525 recognized PEA as the government entity "to undertake the
144
145
146
147
At the public auction sale, only Philippine citizens are qualified to bid
for PEA's reclaimed foreshore and submerged alienable lands of the
public domain. Private corporations are barred from bidding at the
auction sale of any kind of alienable land of the public domain.
148
149
150
151
not dispose of private lands but alienable lands of the public domain.
Only when qualified private parties acquire these lands will the lands
become private lands. In the hands of the government agency
tasked and authorized to dispose of alienable of disposable
lands of the public domain, these lands are still public, not
private lands.
Furthermore, PEA's charter expressly states that PEA "shall hold
lands of the public domain" as well as "any and all kinds of lands."
PEA can hold both lands of the public domain and private lands.
Thus, the mere fact that alienable lands of the public domain like the
Freedom Islands are transferred to PEA and issued land patents or
certificates of title in PEA's name does not automatically make such
lands private.
To allow vast areas of reclaimed lands of the public domain to be
transferred to PEA as private lands will sanction a gross violation of
the constitutional ban on private corporations from acquiring any kind
of alienable land of the public domain. PEA will simply turn
around, as PEA has now done under the Amended JVA, and
transfer several hundreds of hectares of these reclaimed and still to
be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban
in Section 3, Article XII of the 1987 Constitution which was intended
to diffuse equitably the ownership of alienable lands of the public
domain among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural
lands of the public domain since PEA can "acquire x x x any and all
kinds of lands." This will open the floodgates to corporations and
even individuals acquiring hundreds of hectares of alienable lands of
the public domain under the guise that in the hands of PEA these
lands are private lands. This will result in corporations amassing
huge landholdings never before seen in this country - creating the
very evil that the constitutional ban was designed to prevent. This will
completely reverse the clear direction of constitutional development
in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. 105 The 1973
Constitution prohibited private corporations from acquiring any kind
152
153
154
Ibid.
Renato Cayetano.
10
Virgilio C. Abejo.
11
13
15
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, and Corona, JJ., concur.
Footnote
1
19
155
PD No. 1073.
21
23
27
31
24
29
32
34
Ibid.
35
36
37
25
38
40
156
45
Act No. 926, enacted on October 7, 1903, was also titled the
Public Land Act. This Act, however, did not cover reclaimed lands.
Nevertheless, Section 23 of this Act provided as follows: "x x x In no
case may lands leased under the provisions of this chapter be
taken so as to gain control of adjacent land, water, stream, shore
line, way, roadstead, or other valuable right which in the opinion of
the Chief of the Bureau of Public Lands would be prejudicial to the
interests of the public."
47
51
Like Act No. 2874, Section 10 of CA No. 141 defined the terms
"alienation" and "disposition" as follows: "The words "alienation,"
"disposition," or "concession" as used in this Act, shall mean any of
the methods authorized by this Act for the acquisition, lease, use, or
157
56
60
61
65
66
67
Ibid., p. 44.
68
69
70
71
72
Emphasis supplied.
73
57
Ibid.
63
74
76
158
78
80
81
86
87
88
R.A. No. 730 allows the private sale of home lots to actual
occupants of public lands. See note 63.
89
90
Opinion No. 330, citing COA Audit Circular No. 89-296. See note
5.
94
95
Senate Committee Report No. 560, pp. 7-8, citing the Minutes of
Meeting of the PEA Board of Directors held on December 19, 1991.
96
98
99
100
101
159
102
103
106
107
110
FIRST DIVISION
KAPUNAN, J.:
160
161
162
163
164
165
Hence, the instant petition for certiorari with an urgent prayer for
issuance of a temporary restraining order.
The Court, on June 20, 1994, issued a temporary restraining order
enjoining, prohibiting and preventing respondents from implementing
the bus fare rate increase as well as the questioned orders and
memorandum circulars. This meant that provincial bus fares were
rolled back to the levels duly authorized by the LTFRB prior to March
16, 1994. A moratorium was likewise enforced on the issuance of
franchises for the operation of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the
authority given by respondent LTFRB to provincial bus operators to
set a fare range of plus or minus fifteen (15%) percent, later
increased to plus twenty (20%) and minus twenty-five (-25%)
percent, over and above the existing authorized fare without having
to file a petition for the purpose, is unconstitutional, invalid and
illegal. Second, the establishment of a presumption of public need in
favor of an applicant for a proposed transport service without having
to prove public necessity, is illegal for being violative of the Public
Service Act and the Rules of Court.
In its Comment, private respondent PBOAP, while not actually
touching upon the issues raised by the petitioner, questions the
wisdom and the manner by which the instant petition was filed. It
asserts that the petitioner has no legal standing to sue or has no real
interest in the case at bench and in obtaining the reliefs prayed for.
In their Comment filed by the Office of the Solicitor General, public
respondents DOTC Secretary Jesus B. Garcia, Jr. and the LTFRB
166
asseverate that the petitioner does not have the standing to maintain
the instant suit. They further claim that it is within DOTC and
LTFRB's authority to set a fare range scheme and establish a
presumption of public need in applications for certificates of public
convenience.
167
168
169
170
171
172
amendatory and violative of the Public Service Act and the Rules of
Court. Consequently, we rule that the twenty (20%) per centum fare
increase imposed by respondent PBOAP on March 16, 1994 without
the benefit of a petition and a public hearing is null and void and of
no force and effect. No grave abuse of discretion however was
committed in the issuance of DOTC Memorandum Order No. 90-395
and DOTC Memorandum dated October 8, 1992, the same being
merely internal communications between administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED and the challenged administrative issuances and orders,
namely: DOTC Department Order No. 92-587, LTFRB Memorandum
Circular
No. 92-009, and the order dated March 24, 1994 issued by
respondent LTFRB are hereby DECLARED contrary to law and
invalid insofar as they affect provisions therein (a) delegating to
provincial bus and jeepney operators the authority to increase or
decrease the duly prescribed transportation fares; and (b) creating a
presumption of public need for a service in favor of the applicant for a
certificate of public convenience and placing the burden of proving
that there is no need for the proposed service to the oppositor.
The Temporary Restraining Order issued on June 20, 1994 is hereby
MADE PERMANENT insofar as it enjoined the bus fare rate increase
granted under the provisions of the aforementioned administrative
circulars, memoranda and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Quiason, JJ., concur.
#Footnotes
1 Pantranco v. Public Service Commission, 70 Phil.
221.
173
174
SECOND DIVISION
G.R. No. 131719
175
176
177
SEC. 7. Penalties.
178
179
180
181
that if, at all, any damage would result in the implementation of the
law, it is the licensed and registered recruitment agencies and/or the
unskilled Filipino migrant workers discriminated against who would
sustain the said injury or damage, not the respondent. The
respondent, as petitioner in the trial court, was burdened to adduce
preponderant evidence of such irreparable injury, but failed to do so.
The petitioners further insisted that the petition a quo was premature
since the rules and regulations implementing the law had yet to be
promulgated when such petition was filed. Finally, the petitioners
averred that the respondent failed to establish the requisites for the
issuance of a writ of preliminary injunction against the enforcement of
the law and the rules and regulations issued implementing the same.
On December 5, 1997, the appellate court came out with a four-page
decision dismissing the petition and affirming the assailed order and
writ of preliminary injunction issued by the trial court. The appellate
court, likewise, denied the petitioners motion for reconsideration of
the said decision.
The petitioners now come to this Court in a petition for review on
certiorari on the following grounds:
1. Private respondent ARCO-PHIL. had utterly failed to show
its clear right/s or that of its member-agencies to be
protected by the injunctive relief and/or violation of said
rights by the enforcement of the assailed sections of R.A.
8042;
2. The P50,000 injunction bond fixed by the court a quo and
sustained by the Court of Appeals is grossly inadequate to
answer for the damage which petitioners-officials may
sustain, should private respondent ARCO-PHIL. be finally
adjudged as not being entitled thereto.15
On February 16, 1998, this Court issued a temporary restraining
order enjoining the respondents from enforcing the assailed order
and writ of preliminary injunction.
The Issues
The core issue in this case is whether or not the trial court committed
grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the assailed order and the writ of preliminary
injunction on a bond of onlyP50,000 and whether or not the appellate
court erred in affirming the trial courts order and the writ of
preliminary injunction issued by it.
The petitioners contend that the respondent has no locus standi. It is
a non-stock, non-profit organization; hence, not the real party-ininterest as petitioner in the action. Although the respondent filed the
petition in the Regional Trial Court in behalf of licensed and
registered recruitment agencies, it failed to adduce in evidence a
certified copy of its Articles of Incorporation and the resolutions of the
said members authorizing it to represent the said agencies in the
proceedings. Neither is the suit of the respondent a class suit so as
to vest in it a personality to assail Rep. Act No. 8042; the respondent
is service-oriented while the recruitment agencies it purports to
represent are profit-oriented. The petitioners assert that the law is
presumed constitutional and, as such, the respondent was burdened
to make a case strong enough to overcome such presumption and
establish a clear right to injunctive relief.
The petitioners bewail the P50,000 bond fixed by the trial court for
the issuance of a writ of preliminary injunction and affirmed by the
appellate court. They assert that the amount is grossly inadequate to
answer for any damages that the general public may suffer by
reason of the non-enforcement of the assailed provisions of the law.
The trial court committed a grave abuse of its discretion in granting
the respondents plea for injunctive relief, and the appellate court
erred in affirming the order and the writ of preliminary injunction
issued by the trial court.
The respondent, for its part, asserts that it has duly established its
locus standi and its right to injunctive relief as gleaned from its
pleadings and the appendages thereto. Under Section 5, Rule 58 of
the Rules of Court, it was incumbent on the petitioners, as
respondents in the RTC, to show cause why no injunction should
issue. It avers that the injunction bond posted by the respondent was
more than adequate to answer for any injury or damage the
petitioners may suffer, if any, by reason of the writ of preliminary
182
183
184
185
186
187
**
On official leave.
Acting Chairman.
Sec. 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life
of the unborn from conception.
The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the
development of moral character shall receive the support
of the Government.
7
188
17
19
9
Sec. 19. (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall death
penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion perpetua.
(Section 19, Article III of the Constitution.)
10
13
Id. at 235.
14
CA Rollo, p. 10.
15
Rollo, p. 19.
16
24
25
189
26
Id. at 330-332.
44
27
45
28
Supra.
46
29
47
30
31
Ibid.
32
33
34
35
37
39
40
U.S. v. Schnell, 982 F.2d 216 (1992); United States v. Bogle, 689
F.Supp. 1121 (1988).
41
42
43
190
50
51
Id. at 456-458.
52
191
EN BANC
192
Article VII of the Constitution, the President directed the AFP Chief of
Staff and PNP Chief to coordinate with each other for the proper
deployment and utilization of the Marines to assist the PNP in
preventing or suppressing criminal or lawless violence. [6] Finally, the
President declared that the services of the Marines in the anti-crime
campaign are merely temporary in nature and for a reasonable
period only, until such time when the situation shall have improved. [7]
The LOI explains the concept of the PNP-Philippine Marines
joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP
NCRPO and the Philippine Marines partnership in the conduct of
visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by
ordinary criminals but also by organized syndicates whose members
include active and former police/military personnel whose training,
skill, discipline and firepower prove well-above the present capability
of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in
urban areas will reduce the incidence of crimes specially those
perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct
joint NCRPO-PM visibility patrols to keep Metro Manila streets crimefree, through a sustained street patrolling to minimize or eradicate all
forms of high-profile crimes especially those perpetrated by
organized crime syndicates whose members include those that are
well-trained, disciplined and well-armed active or former PNP/Military
personnel.
193
The issues raised in the present petition are: (1) Whether or not
petitioner has legal standing; (2) Whether or not the Presidents
factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the
armed forces to assist the PNP in joint visibility patrols violates the
constitutionalprovisions on civilian supremacy over the military and
the civilian character of the PNP.
194
The President did not commit grave abuse of discretion in calling out the Marines.
195
xxx[21]
196
197
198
power to call out the armed forces. The only criterion is that
whenever it becomes necessary, the President may call the armed
forces to prevent or suppress lawless violence, invasion or rebellion."
The implication is that the President is given full discretion and wide
latitude in the exercise of the power to call as compared to the two
other powers.
If the petitioner fails, by way of proof, to support the assertion
that the President acted without factual basis, then this Court cannot
undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence
of textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be
difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not
constituting technical proof.
On the other hand, the President as Commander-in-Chief has a
vast intelligence network to gather information, some of which may
be classified as highly confidential or affecting the security of the
state. In the exercise of the power to call, on-the-spot decisions may
be imperatively necessary in emergency situations to avert great loss
of human lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress lawless
violence must be done swiftly and decisively if it were to have any
effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could
spill over the other parts of the country. The determination of the
necessity for the calling out power if subjected to unfettered judicial
scrutiny could be a veritable prescription for disaster, as such power
may be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon
the President, as Commander-in-Chief of the Armed Forces, full
discretion to call forth the military when in his judgment it is
199
200
1. Elections;[42]
2. Administration of the Philippine National Red Cross; [43]
3. Relief and rescue operations during calamities and
disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program; [48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities; [50]
201
Even if the Court were to apply the above rigid standards to the
present case to determine whether there is permissible use of the
military in civilian law enforcement, the conclusion is inevitable that
no violation of the civilian supremacy clause in the Constitution is
committed. On this point, the Court agrees with the observation of
the Solicitor General:
people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
One last point. Since the institution of the joint visibility patrol in
January, 2000, not a single citizen has complained that his political or
civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil
liberties of the people that the joint visibility patrol was
conceived. Freedom and democracy will be in full bloom only when
SEPARATE OPINION
PUNO, J.:
202
203
however, the Court ruled that it could assume jurisdiction over the
controversy in light of subsequent events justifying intervention
among which was the existence of a quorum. 20Though the petition
was ultimately dismissed, the Court declared respondent Cuenco as
the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed
jurisdiction over a dispute involving the formation and composition of
the Senate Electoral Tribunal. It rejected the Solicitor General's claim
that the dispute involved a political question. Instead, it declared that
the Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal and the exercise
of its power thereon is subject to constitutional limitations which are
mandatory in nature.22 It held that under the Constitution, the
membership of the Senate Electoral Tribunal was designed to insure
the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.23 The Court then
nullified the election to the Senate Electoral Tribunal made by
Senators belonging to the party having the largest number of votes of
two of their party members but purporting to act on behalf of the
party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed
judgment on whether Congress had formed the Commission on
Appointments in accordance with the Constitution and found that it
did not. It declared that the Commission on Appointments is a
creature of the Constitution and its power does not come from
Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case
of Tolentino v. Comelec26 abandoned Mabanag v. Lopez-Vito. The
question of whether or not Congress, acting as a constituent
assembly in proposing amendments to the Constitution violates the
Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the
issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution-which was being
submitted to the people for ratification-satisfied the three-fourths vote
204
205
On the vital issue of how the Court may inquire into the
President's exercise of power, it ruled that the function of the Court is
not to supplant but merely to check the Executive; to ascertain
whether the President has gone beyond the constitutional limits of
his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. Judicial inquiry is confined to the
question of whether the President did not act arbitrarily.44 Using this
yardstick, the Court found that the President did not.
Barcelon was the ruling case law until the 1971 case
of Lansang v. Garcia came.42 Lansang reversed the previous
cases and held that the suspension of the privilege of the writ of
habeas corpus was not a political question. According to the Court,
the weight of Barcelon was diluted by two factors: (1) it relied heavily
on Martin v. Mott, which involved the U.S. President's power to call
out the militia which is a much broader power than suspension of the
privilege of the writ; and (2) the privilege was suspended by the
American Governor-General whose act, as representative of the
sovereign affecting the freedom of its subjects, could not be equated
with that of the President of the Philippines dealing with the freedom
of the sovereign Filipino people.
The Court declared that the power to suspend the privilege
of the writ of habeas corpus is neither absolute nor unqualified
because the Constitution sets limits on the exercise of
executive discretion on the matter. These limits are: (1) that the
privilege must not be suspended except only in cases of invasion,
insurrection or rebellion or imminent danger thereof; and (2) when
the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for the
206
207
x x x."
calling out power by the President, ergo, this Court cannot pass
upon the validity of its exercise.
It is clear from the foregoing that the President, as Commanderin-Chief of the armed forces of the Philippines, may call out the
armed forces subject to two conditions: (1) whenever it
becomes necessary; and (2) to prevent or suppress lawless
violence, invasion or rebellion. Undeniably, these conditions lay
down thesine qua requirement for the exercise of the power and
the objective sought to be attained by the exercise of the
power. They define the constitutional parameters of the calling
out power. Whether or not there is compliance with these
parameters is a justiciable issue and is not a political question.
208
EN BANC
209
1. EXECUTIVE SUMMARY
xxx xxx xxx
1.2. PCSO is seeking a suitable contractor which
shall build, at its own expense, all the facilities
('Facilities') needed to operate and maintain a
nationwide on-line lottery system. PCSO shall
lease the Facilities for a fixed percentage
ofquarterly gross receipts. All receipts from ticket
sales shall be turned over directly to PCSO. All
capital, operating expenses and expansion
expenses and risks shall be for the exclusive
account of the Lessor.
xxx xxx xxx
1.4. The lease shall be for a period not exceeding
fifteen (15) years.
1.5. The Lessor is expected to submit a
comprehensive nationwide lottery development
plan ("Development Plan") which will include the
game, the marketing of the games, and the
logistics to introduce the games to all the cities
and municipalities of the country within five (5)
years.
xxx xxx xxx
1.7. The Lessor shall be selected based on its
technical expertise, hardware and software
capability, maintenance support, and financial
resources. The Development Plan shall have a
substantial bearing on the choice of the Lessor.
The Lessor shall be a domestic corporation, with
210
2.2. OBJECTIVES
The objectives of PCSO in leasing the Facilities
from a private entity are as follows:
xxx xxx xxx
2.2.2. Enable PCSO to operate a nationwide online Lottery system at no expense or risk to the
government.
xxx xxx xxx
2.4. DUTIES AND RESPONSIBILITIES OF THE
LESSOR
xxx xxx xxx
211
212
3. RENTAL FEE
213
214
215
216
14. NON-COMPETITION
The LESSOR shall not, directly or indirectly,
undertake any activity or business in competition
with or adverse to the On-Line Lottery System of
PCSO unless it obtains the latter's prior written
consent thereto.
15. HOLD HARMLESS CLAUSE
15.1 The LESSOR shall at all times protect and
defend, at its cost and expense, PCSO from and
against any and all liabilities and claims for
damages and/or suits for or by reason of any
217
218
219
arrangement wherein the PCSO would hold and conduct the online lottery system in "collaboration" or "association" with the
PGMC, in violation of Section 1(B) of R.A. No. 1169, as amended
by B.P. Blg. 42, which prohibits the PCSO from holding and
conducting charity sweepstakes races, lotteries, and other similar
activities "in collaboration, association or joint venture with any
person, association, company or entity, foreign or domestic."
Even granting arguendo that a lease of facilities is not within the
contemplation of "collaboration" or "association," an analysis,
however, of the Contract of Lease clearly shows that there is a
"collaboration, association, or joint venture between respondents
PCSO and PGMC in the holding of the On-Line Lottery System,"
and that there are terms and conditions of the Contract "showing
that respondent PGMC is the actual lotto operator and not
respondent PCSO."19
The petitioners also point out that paragraph 10 of the Contract of
Lease requires or authorizes PGMC to establish a
telecommunications network that will connect all the
municipalities and cities in the territory. However, PGMC cannot
do that because it has no franchise from Congress to construct,
install, establish, or operate the network pursuant to Section 1 of
Act No. 3846, as amended. Moreover, PGMC is a 75% foreignowned or controlled corporation and cannot, therefore, be granted
a franchise for that purpose because of Section 11, Article XII of
the 1987 Constitution. Furthermore, since "the subscribed foreign
capital" of the PGMC "comes to about 75%, as shown by
paragraph EIGHT of its Articles of Incorporation," it cannot
lawfully enter into the contract in question because all forms of
gambling and lottery is one of them are included in the socalled foreign investments negative list under the Foreign
Investments Act (R.A. No. 7042) where only up to 40% foreign
capital is allowed. 20
Finally, the petitioners insist that the Articles of Incorporation of
PGMC do not authorize it to establish and operate an on-line
lottery and telecommunications systems. 21
220
221
in Aquino, Jr. v. Commission on Elections [L40004, January 31, 1975, 62 SCRA 275]: "Then
there is the attack on the standing of petitioners,
as vindicating at most what they consider a public
right and not protecting their rights as individuals.
This is to conjure the specter of the public right
dogma as an inhibition to parties intent on keeping
public officials staying on the path of
constitutionalism. As was so well put by Jaffe;
"The protection of private rights is an essential
constituent of public interest and, conversely,
without a well-ordered state there could be no
enforcement of private rights. Private and public
interests are, both in a substantive and procedural
sense, aspects of the totality of the legal order."
Moreover, petitioners have convincingly shown
that in their capacity as taxpayers, their standing
to sue has been amply demonstrated. There
would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works,
foreshadowed by the very decision of People v.
Vera where the doctrine was first fully discussed,
if we act differently now. I do not think we are
prepared to take that step. Respondents,
however, would hard back to the American
Supreme Court doctrine in Mellon v. Frothingham,
with their claim that what petitioners possess "is
an interest which is shared in common by other
people and is comparatively so minute and
indeterminate as to afford any basis and
assurance that the judicial process can act on it."
That is to speak in the language of a bygone era,
even in the United States. For as Chief Justice
Warren clearly pointed out in the later case
of Flast v. Cohen, the barrier thus set up if not
breached has definitely been lowered.
222
223
In line with the liberal policy of this Court on locus standi, ordinary
taxpayers, members of Congress, and even association of
planters, and non-profit civic organizations were allowed to initiate
and prosecute actions before this Court to question the
constitutionality or validity of laws, acts, decisions, rulings, or
orders of various government agencies or instrumentalities.
Among such cases were those assailing the constitutionality of
(a) R.A. No. 3836 insofar as it allows retirement gratuity and
commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses of
Congress; 38 (b) Executive Order No. 284, issued by President
Corazon C. Aquino on 25 July 1987, which allowed members of the
cabinet, their undersecretaries, and assistant secretaries to hold
other government offices or positions; 39 (c) the automatic
appropriation for debt service in the General Appropriations Act; 40 (d)
R.A. No. 7056 on the holding of desynchronized elections; 41 (d) R.A.
No. 1869 (the charter of the Philippine Amusement and Gaming
Corporation) on the ground that it is contrary to morals, public policy,
and order; 42 and (f) R.A. No. 6975, establishing the Philippine
National
Police. 43
Other cases where we have followed a liberal policy
regarding locus standi include those attacking the validity or
legality of (a) an order allowing the importation of rice in the light
of the prohibition imposed by R.A. No. 3452; 44 (b) P.D. Nos. 991
and 1033 insofar as they proposed amendments to the Constitution
and P.D. No. 1031 insofar as it directed the COMELEC to supervise,
control, hold, and conduct the referendum-plebiscite on 16 October
1976; 45 (c) the bidding for the sale of the 3,179 square meters of
land at Roppongi, Minato-ku, Tokyo, Japan; 46 (d) the approval
without hearing by the Board of Investments of the amended
application of the Bataan Petrochemical Corporation to transfer the
site of its plant from Bataan to Batangas and the validity of such
transfer and the shift of feedstock from naphtha only to naphtha
and/or liquefied petroleum gas; 47 (e) the decisions, orders, rulings,
and resolutions of the Executive Secretary, Secretary of Finance,
Commissioner of Internal Revenue, Commissioner of Customs, and
the Fiscal Incentives Review Board exempting the National Power
Corporation from indirect tax and duties; 48 (f) the orders of the
Energy Regulatory Board of 5 and 6 December 1990 on the ground
that the hearings conducted on the second provisional increase in oil
prices did not allow the petitioner substantial crossexamination; 49 (g) Executive Order No. 478 which levied a special
duty of P0.95 per liter or P151.05 per barrel of imported crude oil and
P1.00 per liter of imported oil products; 50 (h) resolutions of the
Commission on Elections concerning the apportionment, by district,
of the number of elective members of Sanggunians; 51 and (i)
memorandum orders issued by a Mayor affecting the Chief of Police
of Pasay City. 52
224
225
amendment would
be to insert after
"foreign" in the
amendment just
read the following:
EXCEPT FOR
THE ACTIVITY IN
LETTER (A)
ABOVE.
When it is joint
venture or in
collaboration with
any entity such
collaboration or
joint venture must
not include activity
activity letter (a)
which is the
holding and
conducting of
sweepstakes
races, lotteries and
other similar acts.
MR. ZAMORA.
THE SPEAKER.
The gentleman from Cebu is
recognized.
MR. DAVIDE.
May I introduce an
amendment to the
committee
amendment? The
THE SPEAKER.
226
Is there any
objection to the
amendment?
(Silence) The
amendment, as
amended, is
approved. 57
Further amendments to paragraph B were introduced and
approved. When Assemblyman Zamora read the final text of
paragraph B as further amended, the earlier approved
amendment of Assemblyman Davide became "EXCEPT FOR
THE ACTIVITIES MENTIONED IN PARAGRAPH (A)"; and by
virtue of the amendment introduced by Assemblyman Emmanuel
Pelaez, the word PRECEDING was inserted before
PARAGRAPH. Assemblyman Pelaez introduced other
amendments. Thereafter, the new paragraph B was approved. 58
This is now paragraph B, Section 1 of R.A. No. 1169, as amended
by B.P. Blg. 42.
No interpretation of the said provision to relax or circumvent the
prohibition can be allowed since the privilege to hold or conduct
charity sweepstakes races, lotteries, or other similar activities is a
franchise granted by the legislature to the PCSO. It is a settled
rule that "in all grants by the government to individuals or
corporations of rights, privileges and franchises, the words are to
be taken most strongly against the grantee .... [o]ne who claims a
franchise or privilege in derogation of the common rights of the
public must prove his title thereto by a grant which is clearly and
definitely expressed, and he cannot enlarge it by equivocal or
doubtful provisions or by probable inferences. Whatever is not
unequivocally granted is withheld. Nothing passes by mere
implication." 59
In short then, by the exception explicitly made in paragraph B,
Section 1 of its charter, the PCSO cannot share its franchise with
another by way of collaboration, association or joint venture.
227
228
229
230
Separate Opinions
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
and
Section 11, Article XII. - No franchise, certificate,
or any other form of authorization for the operation
of a public utility shall be granted except to
citizens of the Philippines or to corporations or
associations organized under the laws of the
Philippines at least sixty per centum of whose
capital is owned by such citizens, nor shall such
franchise, certificate, or authorizations be
exclusive in character or for a longer period than
fifty years. Neither shall any such franchise or
right be granted except under the condition that it
shall be subject to amendment, alteration, or
repeal by the Congress when the common good
so requires. The State shall encourage equity
participation in public utilities by the general
public. The participation of foreign investors in the
governing body of any public utility enterprise
shall be limited to their proportionate share in its
capital, and all the executive and managing
officers of such corporation or association must be
citizen of the Philippines.
Section 1, Article XIII of the Constitution cannot be the matrix of
petitioners' jus tertii claim for it expresses no more than a policy
direction to the legislative in the discharge of its ordained duty
to give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities and remove cultural
inequities by equitably diffusing wealth and political power for the
common good. Whether the act of the legislature in amending the
charter of PCSO by giving it the authority to conduct lotto and
whether the Contract of Lease entered into between PCSO and
PGMC are incongruent to the policy direction of this constitutional
provision is a highly debatable proposition and can be endlessly
argued. Respondents steadfastly insist that the operation of lotto
will increase the revenue base of PCSO and enable government
246
do not at the moment bear out the claim of petitioners that PGMC
is a foreign owned and controlled corporation. This factual issue
remains unsettled and is still the subject of litigation by the parties
in the Securities and Exchange Commission. We are not at liberty
to anticipate the verdict on this contested factual issue. But over
and above this consideration, I respectfully submit that this
constitutional provision does not confer on third parties any right
of a preferred status comparable to the Bill of Rights whose
dilution will justify petitioners to vindicate them in behalf of its
rightholders. The legal right of hypothetical third parties they
profess to advocate is to my mind too impersonal, too
unsubstantial, too indirect, too amorphous to justify their access
to this Court and the further lowering of the constitutional barrier
of locus standi.
Again, with regret, I do not agree that the distinguished status of
some of the petitioners as lawmakers gives them the
appropriate locus standi. I cannot perceive how their
constitutional rights and prerogatives as legislators can be
adversely affected by the contract in question. Their right to enact
laws for the general conduct of our society remains unimpaired
and undiminished. 15 Their status as legislators, notwithstanding,
they have to demonstrate that the said contract has caused them to
suffer a personal, direct, and substantial injury in fact. They cannot
simply advance a generic grievance in common with the people in
general.
I am not unaware of our ruling in De Guia v. Comelec, 16 viz:
Before addressing the crux of the controversy, the
Court observes that petitioner does not allege that
he is running for reelection, much less, that he is
prejudiced by the election, by district, in
Paraaque. As such, he does not appear to
have locus standi, a standing in law, a personal or
substantial interest. (Sanidad vs. COMELEC, G.R.
No. L-44640, October 12, 1976, 73 SCRA 333;
Municipality of Malabang vs. Benito, G.R. No. L-
247
I also submit that de Guia failed to perceive that the rule on locus
standi has little to do with the issue posed in a case, however,
important it may be. As well pointed out in Flast v. Cohen: 17
It is my respectful submission, however, that we should reexamine de Guia. It treated the rule on locus standi as a mere
procedural rule. It is not a plain procedural rule but a
constitutional requirement derived from section 1, Article VIII of
the Constitution which mandates courts of justice to
settle only "actual controversies involving rights which are legally
demandable and enforceable." The phrase has been construed
since time immemorial to mean that a party in a constitutional
litigation must demonstrate a standing to sue. By downgrading
the requirement on locus standi as a procedural rule which can
be discarded in the name of public interest, we are in effect
amending the Constitution by judicial fiat.
De Guia would also brush aside the rule on locus standi if a case
raises an important issue. In this regard, I join the learned
observation of Mr. Justice Feliciano: "that it is not enough for the
Court simply to invoke 'public interest' or even 'paramount
considerations of national interest,' and to say that the specific
requirements of such public interest can only be ascertained on a
'case to case' basis. For one thing, such an approach is not
intellectually satisfying. For another, such an answer appears to
248
249
250
251
252
253
The constraints on judicial power are clear. I feel, the Court must
thus beg off, albeit not without reluctance, from giving due course
to the instant petition.
Accordingly, I vote for the dismissal of the petition.
KAPUNAN, J., dissenting:
I regret that I am unable to join my colleagues in the majority in
spite of my own personal distaste for gambling and other gaming
operations. Such considerations aside, I feel there are compelling
reasons why the instant petition should be dismissed. I shall
forthwith state the reasons why.
Petitioners anchor their principal objections against the contract
entered into between the Philippine Charity Sweepstakes Office
(PCSO) and the PGMC on the ground that the contract entered
into by the PCSO with the PGMC violates the PCSO Charter
(R.A. No. 1169 as amended by B.P. Blg 427, specifically section 1
thereof which bars the said body from holding conducting lotteries
"in collaboration, association or joint venture with any person
association, company or entity."). However, a perusal of the
petition reveals that the compelling reasons behind it, while based
on apparently legal questions involving the contract between the
PCSO and the PGMC, are prompted by the petitioners' moral
objections against the whole idea of gambling operations
operated by the government through the PCSO. The whole point
of the petition, in essence, is a fight between good and evil,
between the morality or amorality of lottery operations conducted
on a wide scale involving millions of individuals and affecting
millions of lives. Their media of opposition are the above stated
defects in the said contract which they assail to be fatally
defective. They come to this Court, as taxpayers and civic spirted
citizens, asserting a right of standing on a transcendental issue
which they assert to be of paramount public interest.
254
255
# Separate Opinions
256
it needs the assistance of PGMC for this purpose, which was its
reason for entering into the contract in the first place.
And when PCSO does avail itself of such assistance, how will it
be operating the lottery? Undoubtedly, it will be doing so "in
collaboration, association or joint venture" with PGMC, which, let
it be added, will not be serving as a mere "hired help" of PCSO
subject to its control. PGMC will be functioning independently in
the discharge of its own assigned role as stipulated in detail
under the contract. PGMC is plainly a partner of PCSO in
violation of law, no matter how PGMC's assistance is called or the
contract is denominated.
Even if it be conceded that the assistance partakes of a lease of
services, the undeniable fact is that PCSO would still be
collaborating or cooperating with PGMC in the operation of the
lottery. What is even worse is that PCSO and PGMC may be
actually engaged in a joint venture, considering that PGMC does
not collect the usual fixed rentals due an ordinary lessor but is
entitled to a special "Rental Fee," as the contract calls it, "equal to
four point nine percent (4.9%) of gross receipts from ticket sales."
The flexibility of this amount is significant. As may be expected, it
will induce in PGMC an active interest and participation in the
success of PCSO that is not expected of an ordinary detached
lessor who gets to be paid his rentals not a rental fee
whether the lessee's business prospers or not. PGMC's share in
the operation depends on its own performance and the
effectiveness of its collaboration with PCSO. Although the
contract pretends otherwise, PGMC is a co-investor with PCSO in
what is practically, if not in a strictly legal sense, a joint venture.
Concerning the doctrine of locus standi, I cannot agree that out of
the sixty million Filipinos affected by the proposed lottery, not a
single solitary citizen can question the agreement. Locus standi is
not such an absolute rule that it cannot admit of exceptions under
certain conditions or circumstances like those attending this
transaction. As I remarked in my dissent in Guazon v. De
Villa, 181 SCRA 623, "It is not only the owner of the burning
house who has the right to call the firemen. Every one has the
right and responsibility to prevent the fire from spreading even if
he lives in the other block."
What is especially galling is that the transaction in question would
foist upon our people an essentially immoral activity through the
instrumentality of a foreign corporation, which naturally does not
have the same concern for our interests as we ourselves have. I
am distressed that foreigners should be allowed to exploit the
weakness of some of us for instant gain without work, and with
the active collaboration and encouragement of our own
government at that.
Feliciano, J., concurring
I agree with the conclusions reached by my distinguished brother
in the Court Davide, Jr., J., both in respect of the question
of locus standi and in respect of the merits of this case, that is,
the issues of legality and constitutionality of the Contract of Lease
entered into between the Philippine Charity Sweepstakes Office
(PCSO) and the Philippine Gaming Management Corporation
(PGMC).
In this separate opinion, I propose to address only the question
of locus standi. It is with some hesitation that I do so, considering
the extensive separate opinions on this question written by my
learned brothers Melo, Puno and Vitug, JJ. I agree with the great
deal of what my brothers Melo, Puno and Vitug say about locus
standi in their separate opinions and there is no need to go over
the ground that I share with them. Because, however, I reach a
different conclusion in respect of the presence or absence
of locus standi on the part of the petitioners in the case before the
Court, there is an internal need (a need internal to myself) to
articulate the considerations which led me to that conclusion.
257
There is, upon the other hand, little substantive dispute that the
possession of locus standi 1 is not, in each and every case, a rigid
and absolute requirement for access to the courts. Certainly that is
the case where great issues of public law are at stake, issues which
cannot be approached in the same way that a court approaches a
suit for the collection of a sum of money or a complaint for the
recovery of possession of a particular piece of land. The broad
question is when, or in what types of cases, the court should insist on
a clear showing of locus standi understood as a direct and personal
interest in the subject matter of the case at bar, and when the court
may or should relax that apparently stringent requirement and
proceed to deal with the legal or constitutional issues at stake in a
particular case.
I submit, with respect, that it is not enough for the Court simply to
invoke "public interest" or even "paramount considerations of
national interest," and to say that the specific requirements of
This is not, however, to say that there is somewhere an overarching juridical principle or theory, waiting to be discovered, that
permits a ready answer to the question of when, or in what types
of cases, the need to show locus standi may be relaxed in greater
or lesser degree. To my knowledge, no satisfactory principle or
theory has been discovered and none has been crafted, whether
in our jurisdiction or in the United States. 2 I have neither the
competence nor the opportunity to try to craft such principle or
formula. It might, however, be useful to attempt to indicate the
considerations of principle which, in the present case, appear to me
to require an affirmative answer to the question of whether or not
petitioners are properly regarded as imbued with the standing
necessary to bring and maintain the present petition.
258
259
260
261
262
263
need not be turned over to the National Treasury. Rather, this will
constitute corporate funds which will remain with the corporation
to finance its various activities as authorized in its charter. And if
ever some semblance of "public character" may be said to attach
to its earnings, it is simply because PCSO is a governmentowned or controlled entity and not a purely private enterprise.
It must be conceded though that a "taxpayer's suit" had been
allowed in a number of instances in this jurisdiction. For sure,
after the trial was blazed by Pascual vs. Secretary of Public
Works, supra, several more followed. It is to be noted, however,
that in those occasions where this Court allowed such a suit, the
case invariably involved either the constitutionality of a statute or
the legality of the disbursement of public funds through the
enforcement of what was perceived to be an invalid or
unconstitutional statute or legislation (Pascual, supra; Philippine
Constitution Association, Inc. vs. Jimenez, 15 SCRA [1965] 479;
Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA
[1966] 300; Tolentino vs. COMELEC, 41 SCRA [1971] 702;
Pelaez vs. Auditor General, 15 SCRA [1965] 569; Iloilo Palay and
Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377).
The case before us is not a challenge to the validity of a statute or
an attempt to restrain expenditure of public funds pursuant to an
alleged invalid congressional enactment. What petitioners ask us
to do is to nullify a simple contract of lease entered into by a
government-owned corporation with a private entity. That
contract, as earlier pointed out, does not involve the
disbursement of public funds but of strictly corporate money. If
every taxpayer, claiming to have interest in the contract, no
matter how remote, could come to this Court and seek
nullification of said contract, the day may come when the
activities of government corporate entities will ground to a
standstill on account of nuisance suits filed against them by
persons whose supposed interest in the contract is as remote and
as obscure as the interest of any man in the street. The dangers
attendant thereto are not hard to discern and this Court must not
allow them to come to pass.
264
265
266
267
268
269
270
271
before the court by invoking the need to keep inviolate section 11,
Article XII of the Constitution which imposes a nationality
requirement on operators of a public utility. For even
assuming arguendo that PGMC is a public utility, still, the records
do not at the moment bear out the claim of petitioners that PGMC
is a foreign owned and controlled corporation. This factual issue
remains unsettled and is still the subject of litigation by the parties
in the Securities and Exchange Commission. We are not at liberty
to anticipate the verdict on this contested factual issue. But over
and above this consideration, I respectfully submit that this
constitutional provision does not confer on third parties any right
of a preferred status comparable to the Bill of Rights whose
dilution will justify petitioners to vindicate them in behalf of its
rightholders. The legal right of hypothetical third parties they
profess to advocate is to my mind too impersonal, too
unsubstantial, too indirect, too amorphous to justify their access
to this Court and the further lowering of the constitutional barrier
of locus standi.
Again, with regret, I do not agree that the distinguished status of
some of the petitioners as lawmakers gives them the
appropriate locus standi. I cannot perceive how their
constitutional rights and prerogatives as legislators can be
adversely affected by the contract in question. Their right to enact
laws for the general conduct of our society remains unimpaired
and undiminished. 15 Their status as legislators, notwithstanding,
they have to demonstrate that the said contract has caused them to
suffer a personal, direct, and substantial injury in fact. They cannot
simply advance a generic grievance in common with the people in
general.
I am not unaware of our ruling in De Guia v. Comelec, 16 viz:
Before addressing the crux of the controversy, the
Court observes that petitioner does not allege that
he is running for reelection, much less, that he is
prejudiced by the election, by district, in
Paraaque. As such, he does not appear to
272
273
274
275
276
277
The constraints on judicial power are clear. I feel, the Court must
thus beg off, albeit not without reluctance, from giving due course
to the instant petition.
Accordingly, I vote for the dismissal of the petition.
278
279
# Footnotes
23 Id., 180-181.
280
56 Id., 1006-1007.
58 Id.
59 36 AM. JUR. 2d Franchises 26 (1968).
60 36 AM. JUR. 2d Franchises 63 (1968).
61 38 AM. JUR. 2d Gambling S 18 (1968).
62 Black's Law Dictionary, Sixth Ed., 88.
281
63 Id., 261.
64 Id., 121.
65 Id., 839.
66 PGMC's Comment; Rollo, 181-182.
67 It declares therein that it "has the legal authority
under R.A. 1169, as amended, to hold and conduct
sweepstakes races, lotteries, and other similar
activities."
68 Attached to the Contract of Lease as Annex "A" is
the Master Games Plan prepared by the PGMC and
approved by the PCSO.
FELICIANO, J. concurring:
282
283
INFORMATION
TECHNOLOGY FOUNDATION
OF
THE
PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H.
LOPEZ, AUGUSTO C.LAGMAN, REX C. DRILON, MIGUEL
HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners,
vs. COMMISSION
ON
ELECTIONS;COMELEC
CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and
AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and
MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC
eSOLUTIONS,
INC.;
and
MEGA
PACIFIC
CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done
contrary to the Constitution, the law or jurisprudence; [1] or (2) when it
is executed whimsically, capriciously or arbitrarily out of malice, ill will
or personal bias.[2] In the present case, the Commission on Elections
approved the assailed Resolution and awarded the subject Contract
not only in clear violation of law and jurisprudence, but also in
reckless disregard of its own bidding rules and procedure. For the
automation of the counting and canvassing of the ballots in the 2004
elections, Comelec awarded the Contract to Mega Pacific
Consortium an entity that had not participated in the bidding. Despite
this grant, the poll body signed the actual automation Contract with
Mega Pacific eSolutions, Inc., a company that joined the bidding but
had not met the eligibility requirements.
EN BANC
284
The Case
Before us is a Petition[4] under Rule 65 of the Rules of Court,
seeking (1) to declare null and void Resolution No. 6074 of the
Commission on Elections (Comelec), which awarded Phase II of the
Modernization Project of the Commission to Mega Pacific
Consortium (MPC); (2) to enjoin the implementation of any further
contract that may have been entered into by Comelec either with
Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc.
(MPEI); and (3) to compel Comelec to conduct a re-bidding of the
project.
The Facts
The following facts are not disputed. They were culled from
official documents, the parties pleadings, as well as from admissions
during the Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, [5] which
authorized Comelec to conduct a nationwide demonstration of a
computerized election system and allowed the poll body to pilot-test
the system in the March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act
8436[6] authorizing Comelec to use an automated election system
(AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated
counting machines (ACMs), computer equipment, devices and
materials; and to adopt new electoral forms and printing materials.
Initially intending to implement the automation during the May
11, 1998 presidential elections, Comelec -- in its Resolution No. 2985
dated February 9, 1998[7] -- eventually decided against full national
implementation and limited the automation to the Autonomous
Region in Muslim Mindanao (ARMM). However, due to the failure of
the machines to read correctly some automated ballots in one town,
the poll body later ordered their manual count for the entire Province
of Sulu.[8]
In the May 2001 elections, the counting and canvassing of votes
for both national and local positions were also done manually, as no
additional ACMs had been acquired for that electoral exercise
allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 020170 a modernization program for the 2004 elections. It resolved to
conduct biddings for the three (3) phases of its Automated Election
System; namely, Phase I - Voter Registration and Validation System;
Phase II - Automated Counting and Canvassing System; and Phase
III - Electronic Transmission.
285
286
287
288
The Issues
In their Memorandum, petitioners raise the following issues for
our consideration:
1. The COMELEC awarded and contracted with a noneligible entity; x x x
2. Private respondents failed to pass the Technical Test as
required in the RFP. Notwithstanding, such failure
was ignored. In effect, the COMELEC changed the
rules after the bidding in effect changing the nature
of the contract bidded upon.
3. Petitioners have locus standi.
4. Instant Petition is not premature. Direct resort to the
Supreme Court is justified.[17]
In the main, the substantive issue is whether the Commission
on Elections, the agency vested with the exclusive constitutional
mandate to oversee elections, gravely abused its discretion when, in
289
290
mandates that in no case shall any such protest stay or delay the
bidding process, but it must first be resolved before any award is
made.
On the other hand, Section 58 provides that court action may be
resorted to only after the protests contemplated by the statute shall
have been completed. Cases filed in violation of this process are to
be dismissed for lack of jurisdiction. Regional trial courts shall have
jurisdiction over final decisions of the head of the procuring entity,
and court actions shall be instituted pursuant to Rule 65 of the 1997
Rules of Civil Procedure.
Respondents assert that throughout the bidding process,
petitioners never questioned the BAC Report finding MPC eligible to
bid and recommending the award of the Contract to it
(MPC). According to respondents, the Report should have been
appealed to the Comelec en banc, pursuant to the aforementioned
sections of RA 9184. In the absence of such appeal, the
determination and recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No.
6074 dated April 15, 2003, awarding the project to Respondent MPC
even before the BAC managed to issue its written report and
recommendation on April 21, 2003. Thus, how could petitioners have
appealed the BACs recommendation or report to the head of the
procuring entity (the chairman of Comelec), when the Comelec en
banc had already approved the award of the contract to MPC even
before petitioners learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003 session,
it received and approved the verbal report and recommendation of
the BAC for the award of the Contract to MPC, and that the BAC
subsequently re-affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents insist that the
law does not require that the BAC Report be in writing before
Comelec can act thereon; therefore, there is allegedly nothing
irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the
BACs report and recommendation to the head of the procuring entity
291
292
A.
Failure to Establish the Identity,
Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the real
bidder, respondents insist that, contrary to petitioners allegations, the
bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was
incorporated only on February 27, 2003, or 11 days prior to the
bidding itself. Rather, the bidder was Mega Pacific Consortium
(MPC), of which MPEI was but a part. As proof thereof, they point to
the March 7, 2003 letter of intent to bid, signed by the president of
293
MPEI allegedly for and on behalf of MPC. They also call attention to
the official receipt issued to MPC, acknowledging payment for the
bidding documents, as proof that it was the consortium that
participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one
signatory -- Willy U. Yu, President, Mega Pacific eSolutions, Inc.,
(Lead Company/ Proponent) For: Mega Pacific Consortium -- and
without any further proof, does not by itself prove the existence of the
consortium. It does not show that MPEI or its president have been
duly pre-authorized by the other members of the putative consortium
to represent them, to bid on their collective behalf and, more
important, to commit them jointly and severally to the bid
undertakings. The letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging
payment for the bidding documents, constitute proof that it was the
purported consortium that participated in the bidding. Such receipts
are issued by cashiers without any legally sufficient inquiry as to the
real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as
eligibility and qualification) of the putative consortium, Comelecs
BAC should have examined the bidding documents submitted on
behalf of MPC. They would have easily discovered the following fatal
flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding
system designed by Comelec under its RFP (Request for Proposal
for the Automation of the 2004 Election) mandated the use of a twoenvelope, two-stage system. A bidders first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was
accepted, while the second envelope would be the Bid Envelope
itself.
294
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of
Commissioner Florentino Tuason Jr., given in open court during the
Oral Argument last October 7, 2003. The good commissioner
affirmed that he was aware, of his own personal knowledge, that
there had indeed been a written agreement among the consortium
members,[34] although it was an internal matter among them, [35] and of
the fact that it would be presented by counsel for private respondent.
[36]
295
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and effective
and binding on, all the five consortium members -- as earlier claimed
by Commissioner Tuason in open court -- it turns out that what was
actually executed were four (4) separate and distinct bilateral
Agreements.[42] Obviously, Comelec was furnished copies of these
Agreements onlyafter the bidding process had been terminated, as
these were not included in the Eligibility Documents. These
Agreements are as follows:
A Memorandum of Agreement between MPEI and SK
C&C
A Memorandum of Agreement between MPEI and
WeSolv
A Teaming Agreement
Election.com Ltd.
between
MPEI
and
296
Deficiencies Have
Not Been Cured
In any event, it is also claimed that the automation Contract
awarded by Comelec incorporates all documents executed by the
consortium members, even if these documents are not referred to
therein. The basis of this assertion appears to be the passages from
Section 1.4 of the Contract, which is reproduced as follows:
All Contract Documents shall form part of the Contract even if they or
any one of them is not referred to or mentioned in the Contract as
forming a part thereof. Each of the Contract Documents shall be
mutually complementary and explanatory of each other such that
what is noted in one although not shown in the other shall be
considered contained in all, and what is required by any one shall be
as binding as if required by all, unless one item is a correction of the
other.
The intent of the Contract Documents is the proper, satisfactory and
timely execution and completion of the Project, in accordance with
the Contract Documents. Consequently, all items necessary for the
proper and timely execution and completion of the Project shall be
deemed included in the Contract.
Thus, it is argued that whatever perceived deficiencies there
were in the supplementary contracts -- those entered into by MPEI
and the other members of the consortium as regards their joint and
several undertakings -- have been cured. Better still, such
deficiencies have supposedly been prevented from arising as a result
of the above-quoted provisions, from which it can be immediately
established that each of the members of MPC assumes the same
joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract
being referred to, entitled The Automated Counting and Canvassing
Project Contract, is between Comelec andMPEI, not the alleged
consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to
the Contract. Nowhere in that Contract is there any mention of a
consortium or joint venture, of members thereof, much less of joint
and several liability. Supposedly executed sometime in May 2003,
[43]
the Contract bears a notarization date of June 30, 2003, and
contains the signature of Willy U. Yu signing as president of MPEI
(not for and on behalf of MPC), along with that of the Comelec
chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the
Equipment and perform the Services under the Contract, in
accordance with the appendices thereof; nothing whatsoever is said
about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced
above do not have the effect of curing (much less preventing)
297
in order to argue that all the members of the joint venture did
not need to be solidarily liable for the entire project or joint venture. It
was sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture would agree to be
solidarily liable. The glaring lack of consistency leaves us at a
loss. Are respondents trying to establish the same joint and solidary
liability among all the members or not?
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract between
Comelec and the MPEI confirms the solidary undertaking of the lead
company and the consortium member concerned for each particular
Contract, inasmuch as the position of MPEI and anyone else
performing the services contemplated under the Contract is
described therein as that of an independent contractor.
The Court does not see, however, how this conclusion was
arrived at. In the first place, the contractual provision being relied
upon by respondents is Article 14, Independent Contractors, which
states: Nothing contained herein shall be construed as establishing
or creating between the COMELEC and MEGA the relationship of
employee and employer or principal and agent, it being understood
that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent
contractor.
Obviously, the intent behind the provision was simply to avoid
the creation of an employer-employee or a principal-agent
relationship and the complications that it would produce. Hence, the
Article states that the role or position of MPEI, or anyone else
performing on its behalf, is that of an independent contractor. It is
obvious to the Court that respondents are stretching matters too
far when they claim that, because of this provision, the Contract in
effect confirms the solidary undertaking of the lead company and the
consortium member concerned for the particular phase of the
project. This assertion is an absolute non sequitur.
298
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the
liability of the consortium members under the Civil Code provisions
on partnership, reasoning that MPEI et al.represented themselves as
partners and members of MPC for purposes of bidding for the
Project. They are, therefore, liable to the Comelec to the extent that
the latter relied upon such representation. Their liability as partners
is solidary with respect to everything chargeable to the partnership
under certain conditions.
The Court has two points to make with respect to this
argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDT never represented themselves as partners
and members of MPC, whether for purposes of bidding or for
something else. It was MPEI alone that represented them to be
members of a consortium it supposedly headed. Thus, its acts may
not necessarily be held against the other members.
Second, this argument of the OSG in its Memorandum [44] might
possibly apply in the absence of a joint venture agreement or some
other writing that discloses the relationship of the members with one
another. But precisely, this case does not deal with a situation in
which there is nothing in writing to serve as reference, leaving
Comelec to rely on mere representations and therefore justifying a
falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and
WeSolv, as well as the Teaming Agreements of MPEI with
Election.com and ePLDT (copies of which have been furnished the
Comelec) are very clear with respect to the extent and the limitations
of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their
liabilities, while joint and several with MPEI, are limited only to the
particular areas of work wherein their services are engaged or their
products utilized. As for Election.com and ePLDT, their separate
Teaming Agreements specifically ascribe to them the role of
subcontractor vis--vis MPEI as contractor and, based on the terms of
their particular agreements, neither Election.com nor ePLDT is, with
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the
eligibility of the bidder, the members of MPC should be evaluated on
a collective basis. Therefore, they contend, the failure of MPEI to
submit financial statements (on account of its recent incorporation)
should not by itself disqualify MPC, since the other members of the
consortium could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the
undertaking of the members of MPC, their contribution of assets and
sharing of risks, and the community of their interest in the
performance of the Contract lead to these reasonable conclusions:
(1) that their collective qualifications should be the basis for
evaluating their eligibility; (2) that the sheer enormity of the project
renders it improbable to expect any single entity to be able to comply
with all the eligibility requirements and undertake the project by itself;
and (3) that, as argued by the OSG, the RFP allows bids from
manufacturers, suppliers and/or distributors that have formed
themselves into a joint venture, in recognition of the virtual
impossibility of a single entitys ability to respond to the Invitation to
Bid.
Additionally, argues the Comelec, the Implementing Rules and
Regulations of RA 6957 (the Build-Operate-Transfer Law) as
amended by RA 7718 would be applicable, as proponents of BOT
projects usually form joint ventures or consortiums. Under the IRR, a
joint venture/consortium proponent shall be evaluated based on the
individual or the collective experience of the member-firms of the
joint venture/consortium and of the contractors the proponent has
engaged for the project.
299
3. WeSolv shall be jointly and severally liable with Mega Pacific only
for the particular products and/or services supplied by the former for
the Project.
4. Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
6. In the event that the parties fail to agree on the terms and
conditions of the supply of the products and services including but
not limited to the scope of the products and services to be supplied
and payment terms, WeSolv shall cease to be bound by its
obligations stated in the aforementioned paragraphs.
7. Any dispute arising from this Agreement shall be settled amicably
by the parties whenever possible. Should the parties be unable to do
so, the parties hereby agree to settle their dispute through arbitration
in accordance with the existing laws of the Republic of the
Philippines. (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI
and SK C&C Co. Ltd., dated March 9, 2003, the body of which
consists of only six (6) paragraphs, which we quote:
1. All parties agree to cooperate in achieving the Consortiums
objective of successfully implementing the Project in the substance
and form as may be most beneficial to the Consortium members and
in accordance w/ the demand of the RFP.
2. Mega Pacific shall have full powers and authority to represent the
Consortium with the Comelec, and to enter and sign, for and in
behalf of its members any and all agreement/s which maybe required
in the implementation of the Project.
300
301
1.
The Court has certainly not seen any joint and several
undertaking by the MPC members that even approximates the tenor
of that which is described above. We fail to see why respondents
should invoke the IRR if it is for their benefit, but refuse to comply
with it otherwise.
YES
AtNORMAL
environmentalcondit
ions
YES
AtHARSH
environmental
conditions
2.
Let us now move to the second subtopic, which deals with the
substantive issue: the ACMs failure to pass the tests of the
Department of Science and Technology (DOST).
3.
Accuratelyrecords
andreportsthedate
andtimeofthestart
andendofcounting
ofballotsper
precinct?
Printselection
returnswithoutany
lossofdateduring
TOTAL
INFORMATION
MANAGEMENT
NO
Doesthemachine
haveanaccuracy
ratingofatleast
99.995percent
At
COLDenvironmental
condition
B.
DOST Technical Tests Flunked by the
Automated Counting Machines
MEGAPACIFIC
CONSORTIUM
NO
302
generationofsuch
reports?
4.
Uninterruptible
backuppower
system,thatwill
engageimmediately
toallowoperationof
atleast10minutes
afteroutage,power
surgeorabnormal
electrical
occurrences?
303
5.
Machinereadstwo
sidedballotsinone
pass?
Note:This
particular
requirement
needs
further
verification
6.
Machinecandetect
previouslycounted
ballotsandprevent
previouslycounted
ballotsfrombeing
countedmorethan
once?
304
7.
Storesresultsof
countedvotesby
precinctinexternal
(removable)storage
device?
Note:This
particular
requirement
needs
further
verification
8.
9.
Datastoredin
externalmediais
encrypted?
Physicalkeyor
similardeviceallows,
limits,orrestricts
operationofthe
machine?
10. CPUspeedisatleast
400mHz?
11. Porttoallowuseof
dotmatrixprinters?
12. Generatesprintoutsof
theelectionreturnsin
aformatspecifiedby
theCOMELEC?
Generatesprintouts
Note:This
particular
requirement
needs
further
verification
Informatspecified
byCOMELEC
13. Printselectionreturns
withoutanylossof
dataduring
generationofsuch
report?
Hardcopy
Softcopy
Note:This
particular
requirement
needs
further
verification
15. Doesthe
City/Municipal
CanvassingSystem
consolidateresults
fromallprecincts
withinitusingthe
encryptedsoftcopy
ofthedatagenerated
bythecounting
machineandstored
ontheremovable
datastoragedevice?
Note:This
particular
requirement
needs
further
verification
14. Generatesanaudit
trailofthecounting
machine,bothhard
copyandsoftcopy?
Note:This
particular
requirement
needs
further
verification
305
16. Doesthe
City/Municipal
CanvassingSystem
consolidateresults
fromallprecincts
withinitusingthe
encryptedsoftcopy
ofthedatagenerated
bythecounting
machineand
transmittedthrough
anelectronic
transmissionmedia?
17. Doesthesystem
outputaZero
City/Municipal
CanvassReport,
whichisprintedon
electiondaypriorto
theconductofthe
actualcanvass
operation,thatshows
thatalltotalsforall
thevotesforallthe
candidatesandother
information,are
indeedzeroornull?
18. Doesthesystem
consolidateresults
fromallprecinctsin
thecity/municipality
usingthedatastorage
devicecomingfrom
thecounting
machine?
19. Isthemachine100%
accurate?
requirement
needs
further
verification
Note:
This
particu
lar
requir
ement
needs
further
verific
ation
Note:This
particular
requirement
needs
further
verification
Note:This
particular
requirement
needs
further
verification
20. IstheProgramableto
detectpreviously
downloadedprecinct
resultsandprevent
thesefrombeing
inputtedagaininto
theSystem?
Printsspecified
reports
Note:This
particular
requirement
needs
further
verification
Note:This
particular
requirement
needs
further
verification
Note:This
particular
Note:This
particular
requirement
needs
further
verification
21. TheSystemisableto
printthespecified
reportsandtheaudit
trailwithoutanyloss
ofdataduring
generationofthe
abovementioned
reports?
AuditTrail
22. Cantheresultofthe
city/municipal
consolidationbe
storedinadata
storagedevice?
Note:This
particular
requirement
needs
further
306
verification
23. Doesthesystem
consolidateresults
fromallprecinctsin
the
provincial/district/
nationalusingthe
datastoragedevice
fromdifferentlevels
ofconsolidation?
Note:This
particular
requirement
needs
further
verification
307
24. Isthesystem100%
accurate?
Note:This
particular
requirement
needs
further
verification
25. IstheProgramableto
detectpreviously
downloadedprecinct
resultsandprevent
thesefrombeing
inputtedagaininto
theSystem?
26. TheSystemisableto
printthespecified
reportsandtheaudit
trailwithoutanyloss
ofdataduring
generationofthe
abovementioned
reports?
Note:This
particular
requirement
needs
further
verification
Printsspecified
reports
AuditTrail
Note:This
particular
requirement
needs
further
verification
27. Cantheresultsofthe
provincial/district/nat
ionalconsolidation
bestoredinadata
storagedevice?
Note:This
particular
requirement
needs
further
verification
308
In the DOST test, TIM obtained 12 failed marks and mostly attributed
to the counting machine itself as stated earlier. These are
requirements of the RFP and therefore the BAC cannot disregard the
same.
Mega-Pacific failed in 8 items however these are mostly on the
software which can be corrected by reprogramming the software and
therefore can be readily corrected.
The BAC verbally inquired from DOST on the status of the retest of
the counting machines of the TIM and was informed that the report
will be forthcoming after the holy week. The BAC was informed that
the retest is on a different parameters theyre being two different
machines being tested. One purposely to test if previously read
ballots will be read again and the other for the other features such as
two sided ballots.
The said machine and the software therefore may not be considered
the same machine and program as submitted in the Technical
proposal and therefore may be considered an enhancement of the
original proposal.
Advance information relayed to the BAC as of 1:40 PM of 15 April
2003 by Executive Director Ronaldo T. Viloria of DOST is that the
result of the test in the two counting machines of TIM contains
substantial errors that may lead to the failure of these machines
based on the specific items of the RFP that DOST has to certify.
Mega-Pacific:
Option 1 Outright purchase: Bid Price of Php1,248,949,088.00
309
percent. The BAC Report indicates that both Mega Pacific and TIM
failed to meet this standard.
The key requirement of accuracy rating happens to be part and
parcel of the Comelecs Request for Proposal (RFP). The RFP, on
page 26, even states that the ballot counting machines and ballot
counting software must have an accuracy rating of 99.9995% (not
merely 99.995%) or better as certified by a reliable independent
testing agency.
When questioned on this matter during the Oral Argument,
Commissioner Borra tried to wash his hands by claiming that the
required accuracy rating of 99.9995 percent had been set by a
private sector group in tandem with Comelec. He added that the
Commission had merely adopted the accuracy rating as part of the
groups recommended bid requirements, which it had not bothered to
amend even after being advised by DOST that such standard was
unachievable. This excuse, however, does not in any way lessen
Comelecs responsibility to adhere to its own published bidding rules,
as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether
99.995 or 99.9995 percent -- the fact remains that the machines of
the so-called consortium failed to even reach the lesser of the
two. On this basis alone, it ought to have been disqualified and its bid
rejected outright.
At this point, the Court stresses that the essence of public
bidding is violated by the practice of requiring very high standards or
unrealistic specifications that cannot be met -- like the 99.9995
percent accuracy rating in this case -- only to water them
down after the bid has been award. Such scheme, which
discourages the entry of prospective bona fidebidders, is in fact a
sure indication of fraud in the bidding, designed to eliminate fair
competition. Certainly, if no bidder meets the mandatory
requirements, standards or specifications, then no award should be
made and a failed bidding declared.
Inability to Print
the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6
and 7, indicate that the ACMs of both bidders were unable to print
310
the audit trail without any loss of data. In the case of MPC, the audit
trail system was not yet incorporated into its ACMs.
This particular deficiency is significant, not only to this bidding
but to the cause of free and credible elections. The purpose of
requiring audit trails is to enable Comelec to trace and verify the
identities of the ACM operators responsible for data entry and
downloading, as well as the times when the various data were
downloaded into the canvassing system, in order to forestall fraud
and to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting
machines and ballot counting software must print an audit trail of all
machine operations for documentation and verification purposes.
Furthermore, the audit trail must be stored on the internal storage
device and be available on demand for future printing and
verifying. On pages 30-31, the RFP also requires that
the city/municipal canvassing system software be able to print an
audit trail of the canvassing operations, including therein such data
as the date and time the canvassing program was started, the log-in
of the authorized users (the identity of the machine operators), the
date and time the canvass data were downloaded into the
canvassing system, and so on and so forth. On page 33 of the RFP,
we find the same audit trail requirement with respect to
the provincial/district canvassing system software; and again on
pages 35-36 thereof, the same audit trail requirement with respect to
the national canvassing system software.
That this requirement for printing audit trails is not to be lightly
brushed aside by the BAC or Comelec itself as a mere formality or
technicality can be readily gleaned from the provisions of Section 7
of RA 8436, which authorizes the Commission to use an automated
system for elections.
The said provision which respondents have quoted several
times, provides that ACMs are to possess certain features divided
into
two
classes:
those
that
the
statute
itself
considers mandatory and other features or capabilities that the law
deems optional. Among those considered mandatory are provisions
for audit trails! Section 7 reads as follows:The System shall contain
the following features: (a) use of appropriate ballots; (b) stand-alone
machine which can count votes and an automated system which can
C.
Inadequacy of Post Facto
Remedial Measures
Respondents argue that the deficiencies relating to the
detection of previously downloaded data, as well as provisions for
audit trails, are mere shortcomings or minor deficiencies in software
or programming, which can be rectified. Perhaps Comelec simply
relied upon the BAC Report, which states on page 8 thereof
that Mega Pacific failed in 8 items[;] however these are mostly on the
software which can be corrected by re-programming x x x and
therefore can be readily corrected.
The undersigned ponentes questions, some of which were
addressed to Commissioner Borra during the Oral Argument, remain
unanswered to this day. First of all, who made the determination that
the eight fail marks of Mega Pacific were on account of the software
-- was it DOST or TWG? How can we be sure these failures were not
the results of machine defects? How was it determined that the
software could actually be re-programmed and thereby rectified? Did
a qualif ied technical expert read and analyze the source
code [ 4 9 ] for the programs and conclude that these could be saved
and remedied? (Such determination cannot be done by any other
means save by the examination and analysis of the source code.)
311
Who was this qualified technical expert? When did he carry out
the study? Did he prepare a written report on his findings? Or did the
Comelec just make a wild guess? It does not follow that all defects in
software programs can be rectified, and the programs saved. In the
information technology sector, it is common knowledge that there are
many badly written programs, with significant programming errors
written into them; hence it does not make economic sense to try to
correct the programs; instead, programmers simply abandon them
and just start from scratch. Theres no telling if any of these programs
is unrectifiable, unless a qualified programmer reads the source
code.
And if indeed a qualified expert reviewed the source code, did
he also determine how much work would be needed to rectify the
programs? And how much time and money would be spent for that
effort? Who would carry out the work? After the rectification process,
who would ascertain and how would it be ascertained that the
programs have indeed been properly rectified, and that they would
work properly thereafter? And of course, the most important question
to ask: could the rectification be done in time for the elections in
2004?
Clearly, none of the respondents bothered to think the matter
through. Comelec simply took the word of the BAC as gospel truth,
without even bothering to inquire from DOST whether it was true that
the deficiencies noted could possibly be remedied by reprogramming the software. Apparently, Comelec did not care about
the software, but focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by
Commissioner Borra during the Oral Argument that the software
currently being used by Comelec was merely the demo version,
inasmuch as the final version that would actually be used in the
elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be
ready for testing and deployment. It seems to the Court that Comelec
is just keeping its fingers crossed and hoping the final product would
work. Is there a Plan B in case it does not? Who knows? But all
these software programs are part and parcel of the bidding and the
Contract awarded to the Consortium. Why is it that the machines are
already being brought in and paid for, when there is as yet no way of
knowing if the final version of the software would be able to run them
properly, as well as canvass and consolidate the results in the
manner required?
The counting machines, as well as the canvassing system, will
never work properly without the correct software programs. There is
an old adage that is still valid to this day: Garbage in, garbage
out. No matter how powerful, advanced and sophisticated the
computers and the servers are, if the software being utilized is
defective or has been compromised, the results will be no better than
garbage. And to think that what is at stake here is the 2004 national
elections -- the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19
Certifications issued by DOST declaring that some 285 counting
machines had been tested and had passed the acceptance testing
conducted by the Department on October 8-18, 2003. Among those
tested were some machines that had failed previous tests, but had
undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in
what manner and by what standards or criteria the condition,
performance and/or readiness of the machines were re-evaluated
and re-appraised and thereafter given the passing mark. Apart from
that fact, the remedial efforts of respondents were, not surprisingly,
apparently focused again on the machines -- the hardware. Nothing
was said or done about the software -- the deficiencies as to
detection and prevention of downloading and entering previously
downloaded data, as well as the capability to print an audit trail. No
matter how many times the machines were tested and re-tested, if
nothing was done about the programming defects and deficiencies,
the same danger of massive electoral fraud remains. As anyone who
has a modicum of knowledge of computers would say, Thats
elementary!
And only last December 5, 2003, an Inq7.net news report
quoted the Comelec chair as saying that the new automated poll
312
Comelecs Latest
Assurances Are
Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay
our apprehensions. They merely affirm and compound the serious
violations of law and gravely abusive acts it has committed. Let us
examine them.
The Resolution issued by this Court on December 9, 2003
required respondents to inform it as to the number of ACMs delivered
and paid for, as well as the total payment made to date for the
purchase thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of ACMs tested,
the number found to be defective; and whether the reprogrammed
software has been tested and found to have complied with the
requirements under Republic Act No. 8436.[50]
In its Partial Compliance and Manifestation dated December 29,
2003, Comelec informed the Court that 1,991 ACMs had already
313
until now, there has never been any mention of a second set or type
of software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and
uncorroborated claim, Comelec in the same submission also
professes (in response to the concerns expressed by this Court)
that the reprogrammed software has been tested and found to
have complied with the requirements of RA 8436. It reasoned
thus: Since the software program is an inherent element in the
automated counting system, the certification issued by the MIRDCDOST that one thousand nine hundred seventy-three (1,973) units
passed the acceptance test procedures is an official recognition by
the MIRDC-DOST that the software component of the automated
election system, which has been reprogrammed to comply with the
provisions of Republic Act No. 8436 as prescribed in the Ad Hoc
Technical Evaluation Committees ACM Testing and Acceptance
Manual, has passed the MIRDC-DOST tests.
The facts do not support this sweeping statement of Comelec. A
scrutiny of the MIRDC-DOST letter dated December 15, 2003,
[52]
which it relied upon, does not justify its grand conclusion. For
claritys sake, we quote in full the letter-certification, as follows:
15 December 2003
HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
Dear Commissioner Borra:
We are pleased to submit 11 DOST Test Certifications representing
11 lots and covering 158 units of automated counting machines
(ACMs) that we have tested from 02-12 December 2003.
314
To date, we have tested all the 1,991 units of ACMs, broken down as
follow: (sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
It should be noted that a total of 18 units have failed the test. Out of
these 18 units, only one (1) unit has failed the retest.
Thank you and we hope you will find everything in order.
315
316
Epilogue
Once again, the Court finds itself at the crossroads of our
nations history. At stake in this controversy is not just the business of
a computer supplier, or a questionable proclamation by Comelec of
one or more public officials. Neither is it about whether this country
should switch from the manual to the automated system of counting
and canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently
its legal mandate to implement the transition from manual to
automated elections.
Unfortunately, Comelec has failed to measure up to this historic
task. As stated at the start of this Decision, Comelec has not merely
gravely abused its discretion in awarding the Contract for the
automation of the counting and canvassing of the ballots. It has also
put at grave risk the holding of credible and peaceful elections by
shoddily accepting electronic hardware and software that admittedly
failed to pass legally mandated technical requirements. Inadequate
as they are, the remedies it proffers post facto do not cure the grave
abuse of discretion it already committed (1) on April 15, 2003, when it
illegally made the award; and (2) sometime in May 2003 when it
executed the Contract for the purchase of defective machines and
non-existent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and
unconscionable to place its imprimatur on this void and illegal
transaction that seriously endangers the breakdown of our electoral
system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional
duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the
purchase of the machines and all appurtenances thereto including
the still-to-be-produced (or in Comelecs words, to be reprogrammed)
software, as well as all the payments made therefor, have no basis
whatsoever in law. The public funds expended pursuant to the void
Resolution and Contract must therefore be recovered from the
payees and/or from the persons who made possible the illegal
317
SO ORDERED.
Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr.,
JJ., concur.
Davide, Jr., C.J., Vitug, and Ynares-Santiago, JJ., see separate
opinion.
Puno, J., concur, and also joins the opinion of J. YnaresSantiago.
Quisumbing, J., in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, and Azcuna, JJ., joins the dissent of J. Tinga.
Tinga, J., pls. see dissenting opinion.
[1]
[2]
[3]
[4]
[5]
[6]
[7]
318
[9]
Loong v. Comelec, 365 Phil. 386, April 14, 1999; see also
Panganiban, Leadership by Example, 1999 ed., pp. 201-249.
Page 11; rollo, Vol. IV, p. 2390. During the Oral Argument on
October 7, 2003, the Court limited the issues to the following:
(1) locus standi of petitioners; (2) prematurity of the Petition
because of non-exhaustion of administrative remedies for
failure to avail of protest mechanisms; and (3) validity of the
award and the Contract being challenged in the Petition.
[18]
[19]
Kilosbayan, Inc. v. Morato, 320 Phil. 171, November 16, 1995, per
Mendoza, J.
[10]
[11]
[12]
[13]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[14]
[15]
[16]
319
[31]
[32]
[33]
[35]
Ibid.
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
At p. 38.
[45]
[46]
232 SCRA 110, 144, May 5, 1994, per Davide Jr., J. (now CJ).
[47]
Culled from table 6, DOST Report; rollo, Vol. II, pp. 1059-1072.
[48]
[49]
320
[51]
[52]
[53]
For example, one can conduct tests to see if certain machines will
tip over and fall on their sides when accidentally bumped, or
if they have a tendency to collapse under their own weight. A
less frivolous example might be that of conducting the same
tests, but lowering the bar or passing mark.
[54]
321
EN BANC
[G.R. No. 148334. January 21, 2004]
The Case
This is a petition for prohibition to set aside Resolution No. NBC
01-005 dated 5 June 2001 (Resolution No. 01-005) and Resolution
No. NBC 01-006 dated 20 July 2001 (Resolution No. 01-006) of
respondent Commission on Elections (COMELEC). Resolution No.
01-005 proclaimed the 13 candidates elected as Senators in the 14
May 2001 elections while Resolution No. 01-006 declared official and
final the ranking of the 13 Senators proclaimed in Resolution No. 01005.
The Facts
Shortly after her succession to the Presidency in January 2001,
President Gloria Macapagal-Arroyo nominated then Senator Teofisto
T. Guingona, Jr. (Senator Guingona) as Vice-President. Congress
confirmed the nomination of Senator Guingona who took his oath as
Vice-President on 9 February 2001.
322
The Issues
The following are the issues presented for resolution:
(1) Procedurally
(a) whether the petition is in fact a petition for quo warranto over
which the Senate Electoral Tribunal is the sole judge;
323
On Petitioners Standing
Honasan questions petitioners standing to bring the instant
petition as taxpayers and voters because petitioners do not claim
that COMELEC illegally disbursed public funds. Neither do
petitioners claim that they sustained personal injury because of the
issuance of Resolution Nos. 01-005 and 01-006.
Legal standing or locus standi refers to a personal and
substantial interest in a case such that the party has sustained or will
sustain direct injury because of the challenged governmental act.
[15]
The requirement of standing, which necessarily sharpens the
presentation of issues,[16] relates to the constitutional mandate that
this Court settle only actual cases or controversies. [17] Thus,
generally, a party will be allowed to litigate only when (1) he can
show that he has personally suffered some actual or threatened
injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable action. [18]
Applied strictly, the doctrine of standing to litigate will indeed bar
the instant petition. In questioning, in their capacity as voters, the
324
325
326
at the next general elections fixes the date at which the special
election is to be held and operates as the call for that
election. Consequently, an election held at the time thus prescribed
is not invalidated by the fact that the body charged by law with the
duty of calling the election failed to do so. [28] This is because the right
and duty to hold the election emanate from the statute and not from
any call for the election by some authority [29] and the law thus
charges voters with knowledge of the time and place of the election.
[30]
Conversely, where the law does not fix the time and place for
holding a special election but empowers some authority to fix the
time and place after the happening of a condition precedent, the
statutory provision on the giving of notice is considered mandatory,
and failure to do so will render the election a nullity.[31]
In the instant case, Section 2 of R.A. No. 6645 itself provides
that in case of vacancy in the Senate, the special election to fill such
vacancy shall be held simultaneously with the next succeeding
regular election. Accordingly, the special election to fill the vacancy in
the Senate arising from Senator Guingonas appointment as VicePresident in February 2001 could not be held at any other time but
must be held simultaneously with the next succeeding regular
elections on 14 May 2001. The law charges the voters with
knowledge of this statutory notice and COMELECs failure to give the
additional notice did not negate the calling of such special election,
much less invalidate it.
Our conclusion might be different had the present case involved
a special election to fill a vacancy in the House of
Representatives. In such a case, the holding of the special election is
subject to a condition precedent, that is, the vacancy should take
place at least one year before the expiration of the term. The time of
the election is left to the discretion of COMELEC subject only to the
limitation that it holds the special election within the range of time
provided in Section 2 of R.A. No. 6645, as amended. This makes
mandatory the requirement in Section 2 of R.A. No. 6645, as
amended, for COMELEC to call x x x a special election x x x not
earlier than 60 days nor longer than 90 days after the occurrence of
the vacancy and give notice of the office to be filled. The COMELECs
failure to so call and give notice will nullify any attempt to hold a
327
preclude the possibility that the voters had actual notice of the
special election, the office to be voted in that election, and the
manner by which COMELEC would determine the winner. Such
actual notice could come from many sources, such as media reports
of the enactment of R.A. No. 6645 and election propaganda during
the campaign.[33]
More than 10 million voters cast their votes in favor of Honasan,
the party who stands most prejudiced by the instant petition. We
simply cannot disenfranchise those who voted for Honasan, in the
absence of proof that COMELECs omission prejudiced voters in the
exercise of their right of suffrage so as to negate the holding of the
special election.Indeed, this Court is loathe to annul elections and
will only do so when it is impossible to distinguish what votes are
lawful and what are unlawful, or to arrive at any certain result
whatever, or that the great body of the voters have been prevented
by violence, intimidation, and threats from exercising their franchise.
[34]
328
329
Then I remember, Mr. President, that when we ran after the EDSA
revolution, twice there were 24 candidates and the first 12 were
elected to a six-year term and the next 12 were elected to a threeyear term.
My question therefore is, how is this going to be done in this
election? Is the candidate with the 13th largest number of votes going
to be the one to take a three-year term? Or is there going to be an
election for a position of senator for the unexpired term of Sen.
Teofisto Guingona?
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the
forthcoming elections that will be held simultaneously as a special
election under this law as we understand it.
xxxx
330
A Word to COMELEC
The calling of a special election, if necessary, and the giving of
notice to the electorate of necessary information regarding a special
election, are central to an informed exercise of the right of suffrage.
While the circumstances attendant to the present case have led us to
conclude that COMELECs failure to so call and give notice did not
invalidate the special senatorial election held on 14 May
2001, COMELEC should not take chances in future elections. We
remind COMELEC to comply strictly with all the requirements under
331
with the regular election on May 14, 2001 and the senatorial
candidate garnering the thirteenth (13th) highest number of votes
shall serve only for the unexpired term of former Senator Teofisto T.
Guingona, Jr. (Emphasis supplied)
[1]
[2]
[3]
Name
NOLI DE CASTRO
16,157,811
JUAN M. FLAVIER
11,676,129
11,531,427
FRANKLIN M. DRILON
11,223,020
11,187,447
JOKER P. ARROYO
11,163,801
11,084,884
FRANCIS N. PANGILINAN
10,877,989
Votes Garnered
(as of 4 June 2001)
332
EDGARDO J. ANGARA
10,746,843
PANFILO M. LACSON
10,481,755
10,456,674
RALPH G. RECTO
10,387,108
GREGORIO G. HONASAN
10,364,272
[5]
This provision states: The Commission on Elections shall fix the date of
the special election, which shall not be earlier than forty-five (45)
days nor later than ninety (90) days from the date of such resolution
or communication, stating among other things the office or offices to
be voted for: Provided, however, That if within the said period a
general election is scheduled to be held, the special election shall
be held simultaneously with such general election.
This provision reads: Certificate of candidacy. No person shall be eligible
for any elective public office unless he files a sworn certificate of
candidacy within the period fixed herein.
A person who has filed a certificate of candidacy may, prior to the election,
withdraw the same by submitting to the office concerned a written
declaration under oath.
No person shall be eligible for more than one office to be filled in the same
election, and if he files his certificate of candidacy for more than
one office, he shall not be eligible for any of them. However, before
the expiration of the period for the filing of certificates of candidacy,
the person who has filed more than one certificate of candidacy
may declare under oath the office for which he desires to be eligible
and cancel the certificate of candidacy for the other office or offices.
The filing or withdrawal of a certificate of candidacy shall not affect whatever
civil, criminal or administrative liabilities which a candidate may
have incurred.
[6]
This
[7]
[8]
[9]
[10]
Castro v. Del Rosario, 25 Phil. 611 (1967); Section 1(a), Rule 66, THE
1997 RULES OF CIVIL PROCEDURE.
[11]
[12]
[13]
Acop v. Guingona, G.R. No. 134856, 2 July 2002, 383 SCRA 577;
Viola v. Hon. Alunan III, 343 Phil. 184 (1997); Alunan III v. Mirasol,
342 Phil. 467 (1997).
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
De Guia v. COMELEC, G.R. No. 104712, 6 May 1992, 208 SCRA 420;
Gonzales v. COMELEC, 129 Phil. 7 (1967). See also Telecom &
Broadcast Attys. of the Phils., Inc. v. COMELEC, 352 Phil. 153
(1998).
333
[22]
[23]
Integrated Bar of the Philippines vs. Zamora, G.R. No. 141284, 15 August
2000, 338 SCRA 81.
[24]
E.g. Resolution No. 3258, dated 28 September 2000 (providing for the
calendar of activities and periods of prohibited acts in connection
with the 14 May 2001 elections as amended by Resolution Nos.
3322, dated 5 October 2000; 3284, dated 20 October 2000; 3306,
dated 7 November 2000; 3426, dated 22 December 2000; and
3359, dated 6 February 2001); Resolution No. 3632, dated 1 March
2001 (canceling the certificates of candidacy of nuisance senatorial
candidates); and Resolution No. 3743, dated 12 March 2001
(providing for the general instructions to the Boards of Election
Inspectors on the casting and counting of votes).
[25]
[26]
[27]
Ibid; ibid.
[28]
[29]
Ibid.
[30]
[31]
[32]
[33]
Florendo, Sr. vs. Buyser, 129 Phil. 353 (1967); Capalla v. Tabiana, 63 Phil.
95 (1936); Kiamzon v. Pugeda,
54
Phil.
755
(1930);
Cailles v. Gomez, 42 Phil. 852 (1924). Batas Pambansa Blg. 881,
as amended, (Omnibus Election Code), on failure of elections
(resulting to the annulment of elections), provides: SEC. 6. Failure
of election. If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place
had not been held on the date fixed, or had been suspended before
the hour fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in
a failure to elect, and in any of such cases the failure or suspension
of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by an interested party and
after due notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a failure to
elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.
[35]
Alcala v. Commission
on
Elections, 218
Phil.
322
(1984); Villareal v. Fornier, 84 Phil. 756 (1949); Lucero v. De
Guzman, 45 Phil. 852 (1924).
[36]
[37]
[38]
[39]
334
EN BANC
[G.R. No. 127685. July 23, 1998]
335
336
337
338
339
340
implementors of A.O. No. 308, the fear that it threatens the right
to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further
look will show that it does not state whether encoding of data is
limited to biological information alone for identification
purposes. In fact, the Solicitor General claims that the adoption of
the Identification Reference System will contribute to the "generation
of population data for development planning." [54] This is an admission
that the PRN will not be used solely for identification but for the
generation of other data with remote relation to the avowed purposes
of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can
give the government the roving authority to store and retrieve
information for a purpose other than the identification of the
individual through his PRN.
The potential for misuse of the data to be gathered under
A.O. No. 308 cannot be underplayed as the dissenters
do. Pursuant to said administrative order, an individual must present
his PRN everytime he deals with a government agency to avail of
basic services and security. His transactions with the government
agency will necessarily be recorded-- whether it be in the computer
or in the documentary file of the agency. The individual's file may
include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the
better the chance of building a huge and formidable information
base through the electronic linkage of the files. [55] The data may
be gathered for gainful and useful government purposes; but
the existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation that may
be too great for some of our authorities to resist.[56]
We can even grant, arguendo, that the computer data file will
be limited to the name, address and other basic personal information
about the individual.[57] Even that hospitable assumption will not
save A.O. No. 308 from constitutional infirmity for again said order
does not tell us in clear and categorical terms how these
information gathered shall be handled. It does not provide who
shall control and access the data, under what circumstances
and for what purpose. These factors are essential to safeguard the
341
privacy and guaranty the integrity of the information. [58] Well to note,
the computer linkage gives other government agencies access to the
information. Yet, there are no controls to guard against leakage
of information. When the access code of the control programs of
the particular computer system is broken, an intruder, without fear of
sanction or penalty, can make use of the data for whatever purpose,
or worse, manipulate the data stored within the system. [59]
It is plain and we hold that A.O. No. 308 falls short of assuring
that personal information which will be gathered about our people will
only be processed for unequivocally specified purposes.[60] The
lack of proper safeguards in this regard of A.O. No. 308 may interfere
with the individual's liberty of abode and travel by enabling
authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way
for "fishing expeditions" by government authorities and evade the
right against unreasonable searches and seizures. [61] The
possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider
that the individual lacks control over what can be read or placed
on his ID, much less verify the correctness of the data encoded.
[62]
They threaten the very abuses that the Bill of Rights seeks to
prevent.[63]
The ability of a sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an individual and
transmit it over a national network is one of the most graphic threats
of the computer revolution.[64] The computer is capable of producing
a comprehensive dossier on individuals out of information given at
different times and for varied purposes. [65] It can continue adding to
the stored data and keeping the information up to date. Retrieval of
stored data is simple. When information of a privileged character
finds its way into the computer, it can be extracted together with
other data on the subject.[66] Once extracted, the information is putty
in the hands of any person. The end ofprivacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the
dissenting opinions would dismiss its danger to the right to privacy
as speculative and hypothetical. Again, we cannot countenance such
a laidback posture. The Court will not be true to its role as
342
ID System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's
abridgment of the right of privacy by using the rational relationship
test.[75] He stressed that the purposes of A.O. No. 308 are: (1) to
streamline
and
speed
up the implementation of basic government services,
(2) eradicate
fraud by avoiding duplication of services, and (3) generate population
data for development planning. He concludes that these purposes
justify the incursions into the right to privacy for the means are
rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,
we upheld the constitutionality of R.A. 3019, the Anti-Graft and
Corrupt Practices Act, as a valid police power measure. We declared
that the law, in compelling a public officer to make an annual report
disclosing his assets and liabilities, his sources of income and
expenses, did not infringe on the individual's right to privacy. The law
was enacted to promote morality in public administration by curtailing
and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service. [78]
[77]
343
344
EN BANC
G.R. No. L-45685
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937,
for the issuance of the writ of certiorari and of prohibition to the Court
of First Instance of Manila so that this court may review the
actuations of the aforesaid Court of First Instance in criminal case
No. 42649 entitled "The People of the Philippine Islands vs. Mariano
345
346
On August 6, 1937, the Fiscal of the City of Manila filed a motion with
the trial court for the issuance of an order of execution of the
judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
347
348
(1) That the present petition does not state facts sufficient in
law to warrant the issuance of the writ of certiorari or of
prohibition.
(2) That the aforesaid petition is premature because the
remedy sought by the petitioners is the very same remedy
prayed for by them before the trial court and was still
pending resolution before the trial court when the present
petition was filed with this court.
(3) That the petitioners having themselves raised the
question as to the execution of judgment before the trial
court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying
probation is unappealable.
(4) That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the
question as to whether or not the execution will lie, this court
nevertheless cannot exercise said jurisdiction while the Court
of First Instance has assumed jurisdiction over the same
upon motion of herein petitioners themselves.
(9) That under the supposition that the order of the trial court
denying probation is not appealable, it is incumbent upon the
accused to file an action for the issuance of the writ
ofcertiorari with mandamus, it appearing that the trial court,
although it believed that the accused was entitled to
probation, nevertheless denied probation for fear of criticism
because the accused is a rich man; and that, before a
petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon
the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an
opportunity to correct or cure the same.
(6) That under the supposition that this court has jurisdiction
to resolve the question submitted to and pending resolution
by the trial court, the present action would not lie because
the resolution of the trial court denying probation is
appealable; for although the Probation Law does not
specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance
denying probation, still it is a general rule in this jurisdiction
349
350
351
352
court to consider the constitutional question raised for the first time
before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to
raise the constitutional question here a point we do not now have
to decide we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The
unchallenged rule is 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 sustained, direct injury as a result
of its enforcement. It goes without saying that if Act No. 4221 really
violates the constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of grater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an invalid statute. Hence,
the well-settled rule that the state can challenge the validity of its own
laws. In Government of the Philippine Islands vs. Springer ([1927]),
50 Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared
an act of the legislature unconstitutional in an action instituted in
behalf of the Government of the Philippines. In Attorney General vs.
Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429),
the State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a
mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired
the obligation of contracts. The capacity of the chief law officer of the
state to question the constitutionality of the statute was though, as a
general rule, only those who are parties to a suit may question the
constitutionality of a statute involved in a judicial decision, it has been
held that since the decree pronounced by a court without jurisdiction
in void, where the jurisdiction of the court depends on the validity of
the statute in question, the issue of constitutionality will be
considered on its being brought to the attention of the court by
persons interested in the effect to begin the statute. (12 C.J., sec.
184, p. 766.) And, even if we were to concede that the issue was not
properly raised in the court below by the proper party, it does not
353
follow that the issue may not be here raised in an original action of
certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be raised a
the trial, and if not raised in the trial court, it will not be considered on
appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co.
vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the
general rule admits of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey
[19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is
a very sharp conflict of authorities, it is said that the question may be
raised for the first time at any state of the proceedings, either in the
trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has
been held that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674;
124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214
Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905],
188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State
vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this
court to consider the constitutional question raised for the first time
before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on
the hypothesis that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to
raise the constitutional question here a point we do not now have
to decide we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The
unchallenged rule is 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 of
its enforcement. It goes without saying that if Act No. 4221 really
violates the Constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage caused by the
354
disposing of the question whether or not the state may bring the
action, the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party
to bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of
the Legislature is not disregarded, and need
not, as an individual plaintiff must, show
grounds of fearing more specific injury.
(State vs. Kansas City 60 Kan., 518 [57
Pac., 118])." (State vs. Lawrence, 80 Kan.,
707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's
law officer, its Attorney-General, or county attorney, may
exercise his bet judgment as to what sort of action he will
bring to have the matter determined, either by quo warranto
to challenge its validity (State vs. Johnson, 61 Kan., 803; 60
Pac., 1068; 49 L.R.A., 662), by mandamus to compel
obedience to its terms (State vs. Dolley, 82 Kan., 533; 108
Pac., 846), or by injunction to restrain proceedings under its
questionable provisions (State ex rel. vs. City of Neodesha, 3
Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St.
Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress &
Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597;
160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d],
286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116
N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417;
State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case
last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district
attorney, being charged with the duty of enforcing the laws,
has no right to plead that a law is unconstitutional. In support
of the argument three decisions are cited, viz.: State ex rel.
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356
357
pardons and reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution. Under the Jones Law,
as at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction
(Vide Constitution of the United States, Art. II, sec. 2; In re Lontok
[1922], 43 Phil., 293). The Governor-General of the Philippines was
thus empowered, like the President of the United States, to pardon a
person before the facts of the case were fully brought to light. The
framers of our Constitution thought this undesirable and, following
most of the state constitutions, provided that the pardoning power
can only be exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases of
impeachment". This is also the rule generally followed in the United
States (Vide Constitution of the United States, Art. II, sec. 2). The
rule in England is different. There, a royal pardon can not be pleaded
in bar of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or
abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed.,
421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699;
Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The
reason for the distinction is obvious. In England, Judgment on
impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit
under the Government" (Art. IX, sec. 4, Constitution of the
Philippines) but extends to the whole punishment attached by law to
the offense committed. The House of Lords, on a conviction may, by
its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal from office
and incapacity to hold office. (Com. vs. Lockwood, supra.) Our
Constitution also makes specific mention of "commutation" and of the
power of the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the Constitution but
only with the concurrence of the National Assembly. We need not
dwell at length on the significance of these fundamental changes. It
is sufficient for our purposes to state that the pardoning power has
remained essentially the same. The question is: Has the pardoning
power of the Chief Executive under the Jones Law been impaired by
the Probation Act?
As already stated, the Jones Law vests the pardoning power
exclusively in the Chief Executive. The exercise of the power may
not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive
cannot be taken away nor fettered by any legislative restrictions, nor
can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to
do with the pardoning power, since no person properly belonging to
one of the departments can exercise any powers appertaining to
either of the others except in cases expressly provided for by the
constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the
pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can
neither exercise such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason unconstitutional
and void. But does it?
In the famous Killitts decision involving an embezzlement case, the
Supreme Court of the United States ruled in 1916 that an order
indefinitely suspending sentenced was void. (Ex parte United States
[1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup.
Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the
court that under the common law the power of the court was limited
to temporary suspension and that the right to suspend sentenced
absolutely and permanently was vested in the executive branch of
the government and not in the judiciary. But, the right of Congress to
establish probation by statute was conceded. Said the court through
its Chief Justice: ". . . and so far as the future is concerned, that is,
the causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable
courts to meet by the exercise of an enlarged but wise discretion the
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359
culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the
same Code provides that "a discretionary penalty shall be imposed"
upon a person under fifteen but over nine years of age, who has not
acted without discernment, but always lower by two degrees at least
than that prescribed by law for the crime which he has committed.
Article 69 of the same Code provides that in case of "incomplete selfdefense", i.e., when the crime committed is not wholly excusable by
reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose
the penalty in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social danger and
the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos.
(Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted form the entire term of
imprisonment, except in certain cases expressly mentioned (art. 29);
the death penalty is not imposed when the guilty person is more than
seventy years of age, or where upon appeal or revision of the case
by the Supreme Court, all the members thereof are not unanimous in
their voting as to the propriety of the imposition of the death penalty
(art. 47, see also, sec. 133, Revised Administrative Code, as
amended by Commonwealth Act No. 3); the death sentence is not to
be inflicted upon a woman within the three years next following the
date of the sentence or while she is pregnant, or upon any person
over seventy years of age (art. 83); and when a convict shall become
insane or an imbecile after final sentence has been pronounced, or
while he is serving his sentenced, the execution of said sentence
shall be suspended with regard to the personal penalty during the
period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the
undue harshness of the penal laws is more clearly demonstrated in
various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a system of
360
361
Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew
[1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J.
Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of
Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15
Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N.
Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y.
Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149
N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P.,
781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs.
Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann.
Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs.
State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814],
130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim.
Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim.
Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep.,
394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep.,
394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep.,
211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;
Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs.
Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393;
396.) We elect to follow this long catena of authorities holding that
the courts may be legally authorized by the legislature to suspend
sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922], 119
Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular
mention. In that case, a statute enacted in 1921 which provided for
the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be
placed under the charge of a parole or peace officer during the term
of such suspension, on such terms as the court may determine, was
held constitutional and as not giving the court a power in violation of
the constitutional provision vesting the pardoning power in the chief
executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App.,
166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same.
They are actually district and different from each other, both in origin
and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894],
141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am.
Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant
reprieves and pardons, as understood when the constitution
was adopted, are totally distinct and different in their nature.
The former was always a part of the judicial power; the latter
was always a part of the executive power. The suspension of
the sentence simply postpones the judgment of the court
temporarily or indefinitely, but the conviction and liability
following it, and the civil disabilities, remain and become
operative when judgment is rendered. A pardon reaches both
the punishment prescribed for the offense and the guilt of the
offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the offender
is as innocent as if he had never committed the offense. It
removes the penalties and disabilities, and restores him to all
his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parte Garland, 71
U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U.
S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S.,
149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were
perfectly familiar with the principles governing the power to
grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the
subject, and the words of the constitution were used to
express the authority formerly exercised by the English
crown, or by its representatives in the colonies. (Ex
parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As
this power was understood, it did not comprehend any part
of the judicial functions to suspend sentence, and it was
never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the
exercise of that power in regard to its own judgments, that
criminal courts has so long maintained. The two powers, so
362
363
364
51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904],
195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas.,
697.) Courts have also sustained the delegation of legislative power
to the people at large. Some authorities maintain that this may not be
done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs.
Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C,
616). However, the question of whether or not a state has ceased to
be republican in form because of its adoption of the initiative and
referendum has been held not to be a judicial but a political question
(Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of
such laws has been looked upon with favor by certain progressive
courts, the sting of the decisions of the more conservative courts has
been pretty well drawn. (Opinions of the Justices [1894], 160 Mass.,
586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57
Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332;
Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also,
legislative power may be delegated by the Constitution itself. Section
14, paragraph 2, of article VI of the Constitution of the Philippines
provides that "The National Assembly may by law authorize the
President, subject to such limitations and restrictions as it may
impose, to fix within specified limits, tariff rates, import or export
quotas, and tonnage and wharfage dues." And section 16 of the
same article of the Constitution provides that "In times of war or other
national emergency, the National Assembly may by law authorize the
President, for a limited period and subject to such restrictions as it
may prescribed, to promulgate rules and regulations to carry out a
declared national policy." It is beyond the scope of this decision to
determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as
follows:
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366
Phil., 234). In the first of these cases, this court sustained the validity
of the law conferring upon the Governor-General authority to adjust
provincial and municipal boundaries. In the second case, this court
held it lawful for the legislature to direct non-Christian inhabitants to
take up their habitation on unoccupied lands to be selected by the
provincial governor and approved by the provincial board. In the third
case, it was held proper for the legislature to vest in the GovernorGeneral authority to suspend or not, at his discretion, the prohibition
of the importation of the foreign cattle, such prohibition to be raised
"if the conditions of the country make this advisable or if deceased
among foreign cattle has ceased to be a menace to the agriculture
and livestock of the lands."
It should be observed that in the case at bar we are not concerned
with the simple transference of details of execution or the
promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs.
Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus
Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil.,
660.)
It is connected, however, that a legislative act may be made to the
effect as law after it leaves the hands of the legislature. It is true that
laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court
of the United State ruled that the legislature may delegate a power
not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738;
31 L. R. A., 112.) The power to ascertain facts is such a power which
may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the
taking into effect of a law. That is a mental process common to all
branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97
N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120;
108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct.,
495; 36 Law. ed., 294.) Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments",
foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "SquirtGun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI,
pp. 147, 152), the orthodox pronouncement of Judge Cooley in his
work on Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the United States in the
following language speaking of declaration of legislative power to
administrative agencies: "The principle which permits the legislature
to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is
defended upon the ground that at the time this authority is granted,
the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it its
duty to do, determines that, under given circumstances, certain
executive or administrative action is to be taken, and that, under
other circumstances, different of no action at all is to be taken. What
is thus left to the administrative official is not the legislative
determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done
according to the terms of the law by which he is governed."
(Willoughby on the Constitution of the United States, 2nd ed., Vol. II,
p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3
Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The
efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon
which the Act shall take effect may be left to such agencies as it may
designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26
Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature,
then may provide that a contingencies leaving to some other person
or body the power to determine when the specified contingencies
has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or
conditions to be ascertained by the provincial board. It leaves, as we
have already said, the entire operation or non-operation of the law
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to any other body of men in the state. In the present case, the
question is not presented in the abstract; for the county court of
Saline county, after the act had been for several months in force in
that county, did by order suspend its operation; and during that
suspension the offense was committed which is the subject of the
present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala.,
392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different
from those applicable to other localities and, while recognizing the
force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of
option laws to the vote of the people. (6 R.C.L., p. 171.) But option
laws thus sustained treat of subjects purely local in character which
should receive different treatment in different localities placed under
different circumstances. "They relate to subjects which, like the
retailing of intoxicating drinks, or the running at large of cattle in the
highways, may be differently regarded in different localities, and they
are sustained on what seems to us the impregnable ground, that the
subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless
within the class of public regulations, in respect to which it is proper
that the local judgment should control." (Cooley on Constitutional
Limitations, 5th ed., p. 148.) So that, while we do not deny the right
of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people
of small communities to pass upon, we believe that in matters of
general of general legislation like that which treats of criminals in
general, and as regards the general subject of probation, discretion
may not be vested in a manner so unqualified and absolute as
provided in Act No. 4221. True, the statute does not expressly state
that the provincial boards may suspend the operation of the
Probation Act in particular provinces but, considering that, in being
vested with the authority to appropriate or not the necessary funds
for the salaries of probation officers, they thereby are given absolute
discretion to determine whether or not the law should take effect or
operate in their respective provinces, the provincial boards are in
reality empowered by the legislature to suspend the operation of the
Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating
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the necessary funds. The validity of a law is not tested by what has
been done but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J.,
p. 786.)
It in conceded that a great deal of latitude should be granted to the
legislature not only in the expression of what may be termed
legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that
popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that
these representatives are no further restrained under our system
than by the express language of the instrument imposing the
restraint, or by particular provisions which by clear intendment, have
that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it
should be borne in mind that a constitution is both a grant and a
limitation of power and one of these time-honored limitations is that,
subject to certain exceptions, legislative power shall not be
delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper
and unlawful delegation of legislative authority to the provincial
boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions
of our Bill of Rights which prohibits the denial to any person of the
equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of
the Philippines.)
This basic individual right sheltered by the Constitution is a restraint
on all the tree grand departments of our government and on the
subordinate instrumentalities and subdivision thereof, and on many
constitutional power, like the police power, taxation and eminent
domain. The equal protection of laws, sententiously observes the
Supreme Court of the United States, "is a pledge of the protection of
equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law.
ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U.
S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what
may be regarded as a denial of the equal protection of the laws in a
question not always easily determined. No rule that will cover every
case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902],
184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor made
arbitrarily or capriciously, is permitted. (Finely vs. California [1911],
222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F.
Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on
substantial distinctions which make real differences; it must be
germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class.
(Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3
N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn.,
540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.
[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep.,
337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough
[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374;
Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct.
Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan
[1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to
flow from the unwarranted delegation of legislative power, although
perhaps this is not necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners in the course
of his oral argument, one province may appropriate the necessary
fund to defray the salary of a probation officer, while another province
may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This
means that a person otherwise coming within the purview of the law
would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be
denied those same benefits. This is obnoxious discrimination.
Contrariwise, it is also possible for all the provincial boards to
appropriate the necessary funds for the salaries of the probation
370
[1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has
the effect of denying the equal protection of the law it is
unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3;
3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386;
State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19
L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in
other provinces, but one province may appropriate for the salary of
the probation officer of a given year and have probation during
that year and thereafter decline to make further appropriation, and
have no probation is subsequent years. While this situation goes
rather to the abuse of discretion which delegation implies, it is here
indicated to show that the Probation Act sanctions a situation which
is intolerable in a government of laws, and to prove how easy it is,
under the Act, to make the guaranty of the equality clause but "a
rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165
U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case
of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed.,
1231). In that case, the Supreme Court of the United States affirmed
the decision of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection of the laws
because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided
in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the
equality clause does not require territorial uniformity. It should be
observed, however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by General Orders
No. 58. No question of legislative authority was involved and the
alleged denial of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of the
City of Manila (Act No. 813) and providing in section 2 thereof that "in
cases triable only in the court of first instance of the City of Manila,
the defendant . . . shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney, after a due
investigation of the facts . . . shall have presented an information
against him in proper form . . . ." Upon the other hand, an analysis of
the arguments and the decision indicates that the investigation by the
prosecuting attorney although not in the form had in the provinces
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(g) Shall comply with such orders as the court may from time
to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or
any by-law or regulation, promulgated in accordance with
law.
The court is required to notify the probation officer in writing of the
period and terms of probation. Under section 4, it is only after the
period of probation, the submission of a report of the probation officer
and appropriate finding of the court that the probationer has complied
with the conditions of probation that probation may be definitely
terminated and the probationer finally discharged from supervision.
Under section 5, if the court finds that there is non-compliance with
said conditions, as reported by the probation officer, it may issue a
warrant for the arrest of the probationer and said probationer may be
committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or modify the
probation, and if revoked, the court shall order the execution of the
sentence originally imposed. Section 6 prescribes the duties of
probation officers: "It shall be the duty of every probation officer to
furnish to all persons placed on probation under his supervision a
statement of the period and conditions of their probation, and to
instruct them concerning the same; to keep informed concerning
their conduct and condition; to aid and encourage them by friendly
advice and admonition, and by such other measures, not
inconsistent with the conditions imposed by court as may seem most
suitable, to bring about improvement in their conduct and condition;
to report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their
conduct and condition; to keep records of their work; make such
report as are necessary for the information of the Secretary of
Justice and as the latter may require; and to perform such other
duties as are consistent with the functions of the probation officer
and as the court or judge may direct. The probation officers provided
for in this Act may act as parole officers for any penal or reformatory
institution for adults when so requested by the authorities thereof,
and, when designated by the Secretary of Justice shall act as parole
officer of persons released on parole under Act Number Forty-one
Hundred and Three, without additional compensation."
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correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the
Act, unless it is conceded that in our case there can be a system of
probation in the provinces without probation officers.
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