G.R. No.

196231

January 28, 2014

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING
THROUGH AND REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY
EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO,
OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY.
RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ,
AND ATTY. CARLITO D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY.
FROILAN D. MONTALBAN, JR., IN THEIR CAPACITIES AS
CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG
LEGAL AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for
reconsideration of our September 4, 2012 Decision which ruled
on the petitions filed by Deputy Ombudsman Emilio Gonzales III
1

and Special Prosecutor Wendell Barreras-Sulit. Their petitions

challenged the constitutionality of Section 8(2) of Republic Act
(RA) No. 6770.
2

In the challenged Decision, the Court upheld the constitutionality

of Section 8(2) of RA No. 6770 and ruled that the President has
disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i)
found Gonzales guilty of Gross Neglect of Duty and Grave
Misconduct constituting betrayal of public trust; and (ii) imposed
on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to
restrain the disciplinary proceedings against her, solely
questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the
proceedings against her after upholding the constitutionality of
Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of
the President in OP Case No. 1 O-J-460 is REVERSED and SET
ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED
with payment of backwages corresponding to the period of
suspension effective immediately, even as the Office of the
Ombudsman is directed to proceed with the investigation in
connection with the above case against petitioner. In G.R. No.
196232, We AFFIRM the continuation of OP-DC Case No. ll-B003 against Special Prosecutor Wendell Barreras-Sulit for alleged
acts and omissions tantamount to culpable violation of the
Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.
3

In view of the Courts ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions
and the present motion for reconsideration.
I. ANTECEDENTS

Pending Gonzales action on Mendoza, et al.s case (on August

26, 2008), the Office of the City Prosecutor of Manila City
dismissed Kalaws complaint against Mendoza, et al. for his
failure to substantiate his allegations. Similarly, on October 17,
2008, the PNP-IAS recommended the dismissal without prejudice
of the administrative case against Mendoza, et al. for Kalaws
failure to prosecute.
8

A. Gonzales petition (G.R. No. 196231)

a. Factual antecedents

On February 16, 2009, after preparing a draft decision on

Mendoza, et al.s case, Gonzales forwarded the entire records to
the Office of then Ombudsman Merceditas Gutierrez for her
review. In his draft decision, Gonzales found Mendoza, et al.
guilty of grave misconduct and imposed on them the penalty of
dismissal from the service.
10

On May 26, 2008, Christian Kalaw filed separate charges with the
Philippine National Police Internal Affairs Service (PNP-IAS) and
with the Manila City Prosecutors Office against Manila Police
District Senior Inspector Rolando Mendoza and four others
(Mendoza, et al.) for robbery, grave threat, robbery extortion and
physical injury.
4

On May 29, 2008, Police Senior Superintendent Atty. Clarence

Guinto filed an administrative charge for grave misconduct with
the National Police Commission (NAPOLCOM) PNP-NCRPO
against Mendoza, et al. based on the same allegations made by
Kalaw before the PNP-IAS.
5

On July 2, 2008, Gonzales, Deputy Ombudsman for Military and

Other Law Enforcement Officers (MOLEO), directed the
NAPOLCOM to turn over the records of Mendozas case to his
office. The Office of the Regional Director of the NAPOLCOM
duly complied on July 24, 2008. Mendoza, et al. filed their
position papers with Gonzales, in compliance with his Order.
6

11

Mendoza, et al. received a copy of the Ombudsmans decision

that approved Gonzales recommendation on October 30, 2009.
Mendoza, et al. filed a motion for reconsideration on November
5, 2009, followed by a Supplement to the Motion for
Reconsideration.
12

13

On December 10, 2009, the MOLEO-Records Section forwarded

Mendoza, et al.s case records to the Criminal Investigation,
Prosecution and Administrative Bureau-MOLEO. On December
14, 2009, the case was assigned to Graft Investigation and
Prosecution Officer (GIPO) Dennis Garcia for review and
recommendation.
14

GIPO Garcia released a draft order to his immediate superior,

Director Eulogio S. Cecilio, for appropriate action on April 5, 2010.
Dir. Cecilio signed and forwarded the draft order to Gonzales
office on April 27, 2010. Gonzales reviewed the draft and
15

endorsed the order, together with the case records, on May 6,

2010 for the final approval by the Ombudsman.

b. The OP ruling

16

On August 23, 2010, pending final action by the Ombudsman on

Mendoza, et al.s case, Mendoza hijacked a tourist bus and held
the 21 foreign tourists and the four Filipino tour assistants on
board as hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it ended
tragically, resulting in the deaths of Mendoza and several others
on board the hijacked bus.

On March 31, 2011, the OP found Gonzales guilty as charged

and dismissed him from the service. According to the OP, "the
inordinate and unjustified delay in the resolution of [Mendozas]
Motion for Reconsideration [that spanned for nine (9) long
months] xxx amounted to gross neglect of duty" and "constituted
a flagrant disregard of the Office of the Ombudsmans own Rules
of Procedure."
21

22

c. The Petition
In the aftermath, President Benigno C. Aquino III directed the
Department of Justice and the Department of Interior and Local
Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No.
01-2010, creating an Incident Investigation and Review
Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the
Ombudsman and Gonzales accountable for their "gross
negligence and grave misconduct in handling the case against
Mendoza." The IIRC stated that the Ombudsman and Gonzales
failure to promptly resolve Mendozas motion for reconsideration,
"without justification and despite repeated pleas" xxx "precipitated
the desperate resort to hostage-taking." The IIRC recommended
the referral of its findings to the OP for further determination of
possible administrative offenses and for the initiation of the proper
administrative proceedings.
17

18

Gonzales posited in his petition that the OP has no administrative

disciplinary jurisdiction over a Deputy Ombudsman. Under
Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy
Ombudsman.
On the merits, Gonzales argued that his office received the draft
order from GIPO Garcia on April 27, 2010. On May 6, 2010, he
completed his review of the draft, approved it, and transmitted it
to the Office of the Ombudsman for final approval. Since the draft
order on Mendozas motion for reconsideration had to undergo
different levels of preparation, review and approval, the period it
took to resolve the motion could not be unjustified, since he
himself acted on the draft order only within nine (9) calendars
days from his receipt of the order.
23

19

B. Sulits petition (G.R. No. 196232)

Accordingly, on October 15, 2010, Gonzales was formally
charged before the OP for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty and for
Misconduct in Office.
20

In April 2005, the Office of the Ombudsman charged Major

General Carlos F. Garcia and several others, before the
Sandiganbayan, with plunder and money laundering. On May 7,

2007, Garcia filed an Urgent Petition for Bail which the

prosecution opposed. The Sandiganbayan denied Garcia's urgent
petition for bail on January 7, 2010, in view of the strength of the
prosecutions evidence against Garcia.

Written Explanation, questioning the OPs jurisdiction. The

question of jurisdiction notwithstanding, the OP set the case for
preliminary investigation on April 15, 2011, prompting Sulit to
seek relief from this Court.

On February 25, 2010, the Office of the Ombudsman, through

Sulit and her prosecutorial staff, entered into a plea bargaining
agreement (Agreement) with Garcia. Garcia thereby agreed to:
(i) withdraw his plea of not guilty to the charge of plunder and
enter a plea of guilty to the lesser offense of indirect bribery; and
(ii) withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense of
facilitating money laundering. In exchange, he would convey to
the government his ownership, rights and other interests over the
real and personal properties enumerated in the Agreement and
the bank deposits alleged in the information.

II. COURTS RULING

24

25

The Sandiganbayan approved the Agreement on May 4,

2010 based on the parties submitted Joint Motion for Approval.
26

27

The apparent one-sidedness of the Agreement drew public

outrage and prompted the Committee on Justice of the House of
Representatives to conduct an investigation. After public
hearings, the Committee found that Sulit, her deputies and
assistants committed culpable violations of the Constitution and
betrayal of public trust grounds for removal under Section 8(2)
of RA No. 6770. The Committee recommended to the President
the dismissal from the service of Sulit and the filing of appropriate
charges against her deputies and assistants before the
appropriate government office.
28

Accordingly, the OP initiated an administrative disciplinary

proceeding against Sulit. On March 24, 2011, Sulit filed her
29

30

On motion for reconsideration and further reflection, the Court

votes to grant Gonzales petition and to declare Section 8(2) of
RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Courts vote
describes below, this conclusion does not apply to Sulit as the
grant of independence is solely with respect to the Office of the
Ombudsman which does not include the Office of the Special
Prosecutor under the Constitution. The prevailing ruling on this
latter point is embodied in the Concurring and Dissenting Opinion
of J. Marvic Mario Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the
petitioners
At the outset, the Court notes that Gonzales and Sulit did not file
a motion for reconsideration of the Courts September 4, 2012
Decision; only the OP, through the OSG, moved for the
reconsideration of our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Courts review
of its ruling on the whole case since a serious constitutional
question has been raised and is one of the underlying bases for
the validity or invalidity of the presidential action. If the President
does not have any constitutional authority to discipline a Deputy

Ombudsman and/or a Special Prosecutor in the first place, then

any ruling on the legal correctness of the OPs decision on the
merits will be an empty one.
In other words, since the validity of the OPs decision on the
merits of the dismissal is inextricably anchored on the final and
correct ruling on the constitutional issue, the whole case
including the constitutional issue remains alive for the Courts
consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman
may be subjected to the administrative disciplinary jurisdiction of
the President (concurrently with that of the Ombudsman) is a
justiciable not a political question. A justiciable question is one
which is inherently susceptible of being decided on grounds
recognized by law, as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers
conferred on a political branch of the government.
31

32

In resolving the petitions, we do not inquire into the wisdom of the

Congress choice to grant concurrent disciplinary authority to the
President. Our inquiry is limited to whether such statutory grant
violates the Constitution, particularly whether Section 8(2) of RA
No. 6770 violates the core constitutional principle of the
independence of the Office of the Ombudsman as expressed in
Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create
the power that Section 8(2) of RA No. 6770 grants where the

Constitution confers none. When exercised authority is drawn

from a vacuum, more so when the authority runs counter to a
core constitutional principle and constitutional intents, the Court is
duty-bound to intervene under the powers and duties granted and
imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several
Ombudsman-like agencies to serve as the people's medium for
airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these
agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance of
their function as government critic.
33

It was under the 1973 Constitution that the Office of the

Ombudsman became a constitutionally-mandated office to give it
political independence and adequate powers to enforce its
mandate. Pursuant to the 1973 Constitution, President Ferdinand
Marcos enacted Presidential Decree (PD) No. 1487, as amended
by PD No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked
principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any
government-owned or controlled corporation. When the Office of
the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive authority to
conduct preliminary investigation of all cases cognizable by the

Sandiganbayan, file the corresponding information, and control

the prosecution of these cases.
34

With the advent of the 1987 Constitution, a new Office of the

Ombudsman was created by constitutional fiat. Unlike in the 1973
Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in
Section 27, Article II and the standard of accountability in public
service under Section 1, Article XI of the 1987 Constitution. These
provisions read:
35

Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against
graft and corruption.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of
the Ombudsman is envisioned to be the "protector of the people"
against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau. This
constitutional vision of a Philippine Ombudsman practically
intends to make the Ombudsman an authority to directly check
and guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to
further realize the vision of the Constitution. Section 21 of RA No.
6770 provides:
36

Section 21. Official Subject to Disciplinary Authority; Exceptions.

The Office of the Ombudsman shall have disciplinary authority
over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members
of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary. [emphasis ours, italics
supplied]
As the Ombudsman is expected to be an "activist
watchman," the Court has upheld its actions, although not
squarely falling under the broad powers granted it by the
Constitution and by RA No. 6770, if these actions are reasonably
in line with its official function and consistent with the law and the
Constitution.
37

38

The Ombudsmans broad investigative and disciplinary powers

include all acts of malfeasance, misfeasance, and nonfeasance of
all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. [emphasis ours]

Given the scope of its disciplinary authority, the Office of the

Ombudsman is a very powerful government constitutional agency
that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and
statutory, that are commensurate with its daunting task of
enforcing accountability of public officers.
39

40

b. "Independence" of constitutional bodies vis-a-vis the

Ombudsmans independence
Under the Constitution, several constitutional bodies have been
expressly labeled as "independent." The extent of the
independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations
in mind: first, the functions performed or the powers involved in a
given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of
checks and balances.
41

Notably, the independence enjoyed by the Office of the

Ombudsman and by the Constitutional Commissions shares
certain characteristics they do not owe their existence to any
act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these "independent"
bodies be insulated from political pressure to the extent that the
absence of "independence" would result in the impairment of their
core functions.
In Bengzon v. Drilon, involving the fiscal autonomy of the
Judiciary, we ruled against the interference that the President
may bring and maintained that the independence and the
42

flexibility of the Judiciary, the Constitutional Commissions and the

Office of the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed
in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent
constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative
not only the express mandate of the Constitution but especially as
regards the Supreme Court, of the independence and separation
of powers upon which the entire fabric of our constitutional
system is based.
The constitutional deliberations explain the Constitutional
Commissions need for independence. In the deliberations of the
1973 Constitution, the delegates amended the 1935 Constitution
by providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the premise that
the effectivity of this body is dependent on its freedom from the
tentacles of politics. In a similar manner, the deliberations of the
1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards insulating
the Commission on Audit from political pressure.
43

44

Notably, the Constitution also created an "independent"

Commission on Human Rights, although it enjoys a lesser degree
of independence since it is not granted fiscal autonomy in the
manner fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire to
keep the Commission independent from the executive branch and
other political leaders:

MR. MONSOD. We see the merits of the arguments of

Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position
of the committee is that we need a body that would be able to
work and cooperate with the executive because the
Commissioner is right. Many of the services needed by this
commission would need not only the cooperation of the executive
branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional
commission over time. We also want a commission to function
even under the worst circumstance when the executive may not
be very cooperative. However, the question in our mind is: Can it
still function during that time? Hence, we are willing to accept
suggestions from Commissioner Rodrigo on how to reconcile this.
We realize the need for coordination and cooperation. We also
would like to build in some safeguards that it will not be rendered
useless by an uncooperative executive.

Secondly, we all know how political fortunes come and go. Those
who are in power yesterday are in opposition today and those
who are in power today may be in the opposition tomorrow.
Therefore, if we have a Commission on Human Rights that would
investigate and make sure that the rights of each one is
protected, then we shall have a body that could stand up to any
power, to defend the rights of individuals against arrest, unfair
trial, and so on.
45

These deliberative considerations abundantly show that the

independent constitutional commissions have been consistently
intended by the framers to be independent from executive control
or supervision or any form of political influence. At least insofar as
these bodies are concerned, jurisprudence is not scarce on how
the "independence" granted to these bodies prevents presidential
interference.
In Brillantes, Jr. v. Yorac, we emphasized that the Constitutional
Commissions, which have been characterized under the
Constitution as "independent," are not under the control of the
President, even if they discharge functions that are executive in
nature. The Court declared as unconstitutional the Presidents act
of temporarily appointing the respondent in that case as Acting
Chairman of the Comelec "however well-meaning" it might have
been.
46

xxxx
MR. GARCIA. xxx Very often, when international commissions or
organizations on human rights go to a country, the most credible
organizations are independent human rights bodies. Very often
these are private organizations, many of which are prosecuted,
such as those we find in many countries in Latin America. In fact,
what we are proposing is an independent body on human rights,
which would provide governments with credibility precisely
because it is independent of the present administration. Whatever
it says on the human rights situation will be credible because it is
not subject to pressure or control from the present political
leadership.

47

In Bautista v. Senator Salonga, the Court categorically stated

that the tenure of the commissioners of the independent
Commission on Human Rights could not be placed under the
discretionary power of the President:
48

Indeed, the Court finds it extremely difficult to conceptualize how

an office conceived and created by the Constitution to be

independent as the Commission on Human Rights and vested

with the delicate and vital functions of investigating violations of
human rights, pinpointing responsibility and recommending
sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure in
office of its Chairman and Members is made dependent on the
pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the
Commission on Human Rights has to be declared
unconstitutional.
Again, in Atty. Macalintal v. Comelec, the Court considered even
the mere review of the rules of the Commission on Elections by
Congress a "trampling" of the constitutional mandate of
independence of this body. Obviously, the mere review of rules
places considerably less pressure on a constitutional body than
the Executives power to discipline and remove key officials of the
Office of the Ombudsman, yet the Court struck down the law as
unconstitutional.

of the Ombudsman and is thus

unconstitutional
Our discussions, particularly the Courts expressed caution
against presidential interference with the constitutional
commissions, on one hand, and those expressed by the framers
of the 1987 Constitution, on the other, in protecting the
independence of the Constitutional Commissions, speak for
themselves as overwhelming reasons to invalidate Section 8(2) of
RA No. 6770 for violating the independence of the Office of the
Ombudsman.

49

The kind of independence enjoyed by the Office of the

Ombudsman certainly cannot be inferior but is similar in degree
and kind to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all these
offices fill the political interstices of a republican democracy that
are crucial to its existence and proper functioning.
50

c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office

In more concrete terms, we rule that subjecting the Deputy

Ombudsman to discipline and removal by the President, whose
own alter egos and officials in the Executive Department are
subject to the Ombudsmans disciplinary authority, cannot but
seriously place at risk the independence of the Office of the
Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them
tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did. By
so doing, the law directly collided not only with the independence
that the Constitution guarantees to the Office of the Ombudsman,
but inevitably with the principle of checks and balances that the
creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily
true for her Deputies who act as agents of the Ombudsman in the
performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials
who are not as independent as she is, if only because they are
subject to pressures and controls external to her Office. This

need for complete trust is true in an ideal setting and truer still in
a young democracy like the Philippines where graft and
corruption is still a major problem for the government. For these
reasons, Section 8(2) of RA No. 6770 (providing that the
President may remove a Deputy Ombudsman) should be
declared void.
The deliberations of the Constitutional Commission on the
independence of the Ombudsman fully support this position.
Commissioner Florenz Regalado of the Constitutional
Commission expressed his apprehension that any form of
presidential control over the Office of the Ombudsman would
diminish its independence. The following exchanges between
Commissioners Blas Ople and Christian Monsod further reveal
the constitutional intent to keep the Office of the Ombudsman
independent from the President:
51

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the
Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional arm
for good government, efficiency of the public service and the
integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be
accountable to no one on the pretext that it is a constitutional
body?
MR. MONSOD. The Committee discussed that during our
committee deliberations and when we prepared the report, it was
the opinion of the Committee and I believe it still is that it
may not contribute to the effectiveness of this office of the
Ombudsman precisely because many of the culprits in

inefficiency, injustice and impropriety are in the executive

department. Therefore, as we saw the wrong implementation of
the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the
function of a special fiscal. The whole purpose of our proposal is
precisely to separate those functions and to produce a vehicle
that will give true meaning to the concept of Ombudsman.
Therefore, we regret that we cannot accept the proposition.
52

The statements made by Commissioner Monsod emphasized a

very logical principle: the Executive power to remove and
discipline key officials of the Office of the Ombudsman, or to
exercise any power over them, would result in an absurd situation
wherein the Office of the Ombudsman is given the duty to
adjudicate on the integrity and competence of the very persons
who can remove or suspend its members. Equally relevant is the
impression that would be given to the public if the rule were
otherwise. A complainant with a grievance against a high-ranking
official of the Executive, who appears to enjoy the Presidents
favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainants impression (even if
misplaced), that the Ombudsman would be susceptible to political
pressure, cannot be avoided. To be sure, such an impression
would erode the constitutional intent of creating an Office of the
Ombudsman as champion of the people against corruption and
bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently
addressed the concern that a lack of an external check against

the Deputy Ombudsman would result in mutual protection

between the Ombudsman and her Deputies.
While the preceding discussion already suffices to address this
concern, it should be added that this concern stands on shaky
grounds since it ignores the existing checks and balances already
in place. On the one hand, the Ombudsmans Deputies cannot
protect the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand, the
Ombudsmans attempt to cover up the misdeeds of her Deputies
can be questioned before the Court on appeal or certiorari. The
same attempt can likewise subject her to impeachment.

Under Section 2, Article XI of the 1987 Constitution, Congress is

empowered to determine the modes of removal from office of all
public officers and employees except the President, the VicePresident, the Members of the Supreme Court, the Members of
the Constitutional Commissions, and the Ombudsman, who are
all impeachable officials.
53

The intent of the framers of the Constitution in providing that "[a]ll

other public officers and employees may be removed from office
as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from
extending the more stringent rule of "removal only by
impeachment" to favored public officers. Understandably so,
impeachment is the most difficult and cumbersome mode of
removing a public officer from office. It is, by its nature, a sui
generis politico-legal process that signals the need for a
judicious and careful handling as shown by the process required
to initiate the proceeding; the one-year limitation or bar for its
initiation; the limited grounds for impeachment; the defined
instrumentality given the power to try impeachment cases; and
the number of votes required for a finding of guilt. All these
argue against the extension of this removal mechanism beyond
those mentioned in the Constitution.
54

The judicial recourse available is only consistent with the nature

of the Supreme Court as a non-political independent body
mandated by the Constitution to settle judicial and quasi-judicial
disputes, whose judges and employees are not subject to the
disciplinary authority of the Ombudsman and whose neutrality
would be less questionable. The Members of the Court
themselves may be subjected to the impeachment power of
Congress.
In these lights, the appeal, if any, of the mutual protection
argument becomes distinctly implausible. At the same time, the
Court remains consistent with its established rulings - that the
independence granted to the Constitutional Commissions bars
any undue interference from either the Executive or Congress
and is in full accord with constitutional intent.
e. Congress power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority

55

56

57

58

59

60

On the practical side, our nation has witnessed the complications

and problems an impeachment proceeding entails, thus justifying
its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few,
some of the negative practical effects of impeachment are: it
stalls legislative work; it is an expensive process in terms of the
cost of prosecution alone; and, more importantly, it is inherently
divisive of the nation. Thus, in a cost-benefit analysis of adopting
impeachment as a mechanism, limiting Congress power to
61

otherwise legislate on the matter is far more advantageous to the

country.
It is in these lights that the second sentence in Section 2, Article
XI of the 1987 Constitution should be read. Contrary to the
implied view of the minority, in no way can this provision be
regarded as blanket authority for Congress to provide for any
ground of removal it deems fit. While the manner and cause of
removal are left to congressional determination, this must still be
consistent with constitutional guarantees and principles, namely:
the right to procedural and substantive due process; the
constitutional guarantee of security of tenure; the principle of
separation of powers; and the principle of checks and balances.

62

In short, the authority granted by the Constitution to Congress to

provide for the manner and cause of removal of all other public
officers and employees does not mean that Congress can ignore
the basic principles and precepts established by the Constitution.
In the same manner, the congressional determination of the
identity of the disciplinary authority is not a blanket authority for
Congress to repose it on whomsoever Congress chooses without
running afoul of the independence enjoyed by the Office of the
Ombudsman and without disrupting the delicate check and
balance mechanism under the Constitution. Properly viewed from
this perspective, the core constitutional principle of independence
is observed and any possible absurdity resulting from a contrary
interpretation is avoided. In other words, while the Constitution
itself vested Congress with the power to determine the manner
and cause of removal of all non-impeachable officials, this power
must be interpreted consistent with the core constitutional
principle of independence of the Office of the Ombudsman. Our
observation in Macalintal v. Comelec is apt:
63

The ambit of legislative power under Article VI of the Constitution

is circumscribed by other constitutional provisions. One such
provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC
shall be "independent."
While one may argue that the grounds for impeachment under
Section 8(2) of RA No. 6770 is intended as a measure of
protection for the Deputy Ombudsman and Special Prosecutor
since these grounds are not intended to cover all kinds of official
wrongdoing and plain errors of judgment - this argument seriously
overlooks the erosion of the independence of the Office of the
Ombudsman that it creates. The mere fact that a statutorilycreated sword of Damocles hangs over the Deputy
Ombudsmans head, by itself, opens up all the channels for
external pressures and influence of officialdom and partisan
politics. The fear of external reprisal from the very office he is to
check for excesses and abuses defeats the very purpose of
granting independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do
not conform to the high standard required in determining whether
a Deputy Ombudsman committed an impeachable offense) and
that the Presidents power of removal is limited to specified
grounds are dismally inadequate when balanced with the
constitutional principle of independence. The mere filing of an
administrative case against the Deputy Ombudsman and the
Special Prosecutor before the OP can already result in their
suspension and can interrupt the performance of their functions,
in violation of Section 12, Article XI of the Constitution. With only
one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be
reduced to the very same ineffective Office of the Ombudsman

that the framers had foreseen and carefully tried to avoid by

making these offices independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority
over the Deputy Ombudsman, its decision finding Gonzales guilty
of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OPs decision
perfectly illustrates why the requirement of impeachment-grounds
in Section 8(2) of RA No. 6770 cannot be considered, even at a
minimum, a measure of protection of the independence of the
Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue

Let us again briefly recall the facts.

1. November 5, 2009 - Mendoza filed a Motion for
Reconsideration of the decision of the
Ombudsman, which was followed by a Supplement to
the Motion for Reconsideration;
65

66

2. December 14, 2009 - GIPO Garcia, who was assigned

to review these motions and make his recommendation
for the appropriate action, received the records of the
case;
67

3. April 5, 2010 GIPO Garcia released a draft order to

be reviewed by his immediate superior, Dir. Cecilio;
68

a. The Office of the Presidents

finding of gross negligence
has no legal and factual leg to
stand on

4. April 27, 2010 Dir. Cecilio signed and forwarded to

Gonzales this draft order;
69

The OPs decision found Gonzales guilty of Gross Neglect of

Duty and of Grave Misconduct. The assailed Decision of the OP
reads:
Upon consideration of the First Report, the evidence and
allegations of respondent Deputy Ombudsman himself, and other
documentary evidence gathered, this Office finds that the
inordinate and unjustified delay in the resolution of Captain
Mendozas Motion for Reconsideration timely filed on 5
November 2009 xxx amounted to gross neglect of duty and/or
inefficiency in the performance of official duty.
64

b. No gross neglect of duty or inefficiency

5. May 6, 2010 (or nine days after the records were

forwarded to Gonzales) Gonzales endorsed the draft
order for the final approval of the Ombudsman.
70

Clearly, when Mendoza hijacked the tourist bus on August 23,

2010, the records of the case were already pending before
Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want
of even the slightest care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences
insofar as other persons may be affected. In the case of public
officials, there is gross negligence when a breach of duty is
flagrant and palpable.
71

Gonzales cannot be guilty of gross neglect of duty and/or

inefficiency since he acted on the case forwarded to him within
nine days. In finding Gonzales guilty, the OP relied on Section 8,
Rule III of Administrative Order No. 7 (or the Rules of Procedure
of the Office of the Ombudsman, series of 1990, as amended) in
ruling that Gonzales should have acted on Mendozas Motion for
Reconsideration within five days:

the period for resolving the case does not cover the period within
which it should be reviewed:

72

Section 8. Motion for reconsideration or reinvestigation: Grounds

Whenever allowable, a motion for reconsideration or
reinvestigation may only be entertained if filed within ten (10)
days from receipt of the decision or order by the party on the
basis of any of the following grounds:
a) New evidence had been discovered which materially
affects the order, directive or decision;
b) Grave errors of facts or laws or serious irregularities
have been committed prejudicial to the interest of the
movant.

Section 6. Rendition of decision. Not later than thirty (30) days

after the case is declared submitted for resolution, the Hearing
Officer shall submit a proposed decision containing his findings
and recommendation for the approval of the Ombudsman. Said
proposed decision shall be reviewed by the Directors, Assistant
Ombudsmen and Deputy Ombudsmen concerned. With respect
to low ranking public officials, the Deputy Ombudsman concerned
shall be the approving authority. Upon approval, copies thereof
shall be served upon the parties and the head of the office or
agency of which the respondent is an official or employee for his
information and compliance with the appropriate directive
contained therein. [italics and emphases supplied]
Thus, the OPs ruling that Gonzales had been grossly negligent
for taking nine days, instead of five days, to review a case was
totally baseless.
c. No actionable failure to supervise subordinates

Only one motion for reconsideration or reinvestigation shall be

allowed, and the Hearing Officer shall resolve the same within
five (5) days from the date of submission for resolution.
[emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it
requires cannot apply to Gonzales since he is a Deputy
Ombudsman whose obligation is to review the case; he is not
simply a Hearing Officer tasked with the initial resolution of the
motion. In Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed decision,

The OPs claims that Gonzales could have supervised his

subordinates to promptly act on Mendozas motion and apprised
the Tanodbayan of the urgency of resolving the same are similarly
groundless.
The Office of the Ombudsman is not a corner office in our
bureaucracy. It handles numerous cases that involve the potential
loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendozas
case should have been prioritized over other similar cases.

The Court has already taken judicial notice of the steady stream
of cases reaching the Office of the Ombudsman. This
consideration certainly militates against the OSGs observation
that there was "a grossly inordinate and inexcusable delay" on
the part of Gonzales.
73

74

Equally important, the constitutional guarantee of "speedy

disposition of cases" before, among others, quasi-judicial
bodies, like the Office of the Ombudsman, is itself a relative
concept. Thus, the delay, if any, must be measured in this
objective constitutional sense. Unfortunately, because of the very
statutory grounds relied upon by the OP in dismissing Gonzales,
the political and, perhaps, "practical" considerations got the better
of what is legal and constitutional.
75

with the established concept of the right of speedy disposition of

cases something the Court may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in
Mendozas case by having the case endorsed to the Office of the
Ombudsman and by resolving it against Mendoza on the basis of
the unverified complaint-affidavit of the alleged victim, Kalaw.

76

The facts do not show that Gonzales subordinates had in any

way been grossly negligent in their work. While GIPO Garcia
reviewed the case and drafted the order for more than three
months, it is noteworthy that he had not drafted the initial decision
and, therefore, had to review the case for the first time. Even the
Ombudsman herself could not be faulted for acting on a case
within four months, given the amount of cases that her office
handles.
77

The point is that these are not inordinately long periods for the
work involved: examination of the records, research on the
pertinent laws and jurisprudence, and exercise of legal judgment
and discretion. If this Court rules that these periods per se
constitute gross neglect of duty, the Ombudsmans constitutional
mandate to prosecute all the erring officials of this country would
be subjected to an unreasonable and overwhelming constraint.
Similarly, if the Court rules that these periods per se constitute
gross neglect of duty, then we must be prepared to reconcile this

The fact that Gonzales had Mendozas case endorsed to his

office lies within his mandate, even if it were based merely on the
request of the alleged victims father. The Constitution empowers
the Ombudsman and her Deputies to act promptly on complaints
filed in any form or manner against any public official or employee
of the government. This provision is echoed by Section 13 of RA
No. 6770, and by Section 3, Rule III of Administrative Order No.
7, series of 1990, as amended.
78

79

80

Moreover, Gonzales and his subordinates did not resolve the

complaint only on the basis of the unverified affidavit of Kalaw.
Based on the prosecution officers recommendations, the finding
of guilt on the part of Mendoza, et al. was based on their
admissions as well. Mendoza, et al. admitted that they had
arrested Kalaw based on two traffic violations and allowed him to
stay the whole night until the following morning in the police
precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based
merely on his promise to return with the proper
documents. These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending
Kalaw, since the proper procedure for the apprehension of traffic
81

violators would be to give them a ticket and to file a case, when

appropriate.

D. The Special Prosecutor: The Constitutional Issue

82

Lastly, we cannot deduce undue interest simply because

Gonzales decision differs from the decision of the PNP-IAS
(which dismissed the complaint against Mendoza). To be sure, we
cannot tie the hands of any judicial or quasi-judicial body by ruling
that it should always concur with the decisions of other judicial or
quasi-judicial bodies which may have also taken cognizance of
the case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has
specifically granted to this office and would nullify the very
purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales,
the penalty of removal imposed by the OP necessarily suffers
grave infirmity. Basic strictures of fair play dictate that we can only
be held liable for our own misdeeds; we can be made to account
only for lapses in our responsibilities. It is notable that of all the
officers, it was Gonzales who took the least time nine days
followed by Cecilio, who took 21 days; Garcia the writer of the
draft took less than four months, and the Ombudsman, less
than four months until the kidnapping incident rendered
Mendozas motion moot.
In these lights, the decision of the OP is clearly and patently
wrong. This conclusion, however, does not preclude the
Ombudsman from looking into any other possible administrative
liability of Gonzales under existing Civil Service laws, rules and
regulations.

The 1987 Constitution created a new, independent Office of the

Ombudsman. The existing Tanodbayan at the time became the
Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the
Ombudsman under the 1987 Constitution does not textually
include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No.
6770 should equally apply to the
83

Special Prosecutor on the basis of the legislative history of the

Office of the Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution, the legislature was mandated to
create the Office of the Ombudsman, known as the Tanodbayan,
with investigative and prosecutorial powers. Accordingly, on June
11, 1978, President Ferdinand Marcos enacted PD No. 1487.
84

85

Under PD No. 1486, however, the "Chief Special Prosecutor"

(CSP) was given the "exclusive authority" to conduct preliminary
investigation and to prosecute cases that are within the
jurisdiction of the Sandiganbayan. PD No. 1486 expressly gave
the Secretary of Justice the power of control and supervision over
the Special Prosecutor. Consistent with this grant of power, the
law also authorized the Secretary of Justice to appoint or detail to
the Office of the CSP "any officer or employee of Department of
Justice or any Bureau or Office under the executive supervision
thereof" to assist the Office of the CSP.
86

87

88

In December 1978, PD No. 1607 practically gave back to the

Tanodbayan the powers taken away from it by the Office of the
CSP. The law "created in the Office of the Tanodbayan an Office
89

of the Chief Special Prosecutor" under the Tanodbayans

control, with the exclusive authority to conduct preliminary
investigation and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also
empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP
any public officer or employees who "shall be under the
supervision and control of the Chief Special Prosecutor." In
1979, PD No. 1630 further amended the earlier decrees by
transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.
90

91

92

This was the state of the law at the time the 1987 Constitution
was ratified. Under the 1987 Constitution, an "independent Office
of the Ombudsman" is created. The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to
function and exercise its powers as now or hereafter may be
provided by law."
93

94

95

appointment, the law gave the President the authority to appoint

the Ombudsman, his Deputies and the Special Prosecutor, from a
list of nominees prepared by the Judicial and Bar Council. In case
of vacancy in these positions, the law requires that the vacancy
be filled within three (3) months from occurrence.
97

The law also imposes on the Special Prosecutor the same

qualifications it imposes on the Ombudsman himself/herself and
his/her deputies. Their terms of office, prohibitions and
qualifications, rank and salary are likewise the same. The
requirement on disclosure is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case of vacancy
in the Office of the Ombudsman, the Overall Deputy cannot
assume the role of Acting Ombudsman; the President may
designate any of the Deputies or the Special Prosecutor as Acting
Ombudsman. The power of the Ombudsman and his or her
deputies to require other government agencies to render
assistance to the Office of the Ombudsman is likewise enjoyed by
the Special Prosecutor.
98

99

100

101

102

103

104

Other than the Ombudsmans Deputies, the Ombudsman shall

appoint all other officials and employees of the Office of the
Ombudsman. Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers
or perform such functions or duties as may be provided by law."
Pursuant to this constitutional command, Congress enacted RA
No. 6770 to provide for the functional and structural organization
of the Office of the Ombudsman and the extent of its disciplinary
authority.
96

In terms of composition, Section 3 of RA No. 6770 defines the

composition of the Office of the Ombudsman, including in this
Office not only the offices of the several Deputy Ombudsmen but
the Office of the Special Prosecutor as well. In terms of

Given this legislative history, the present overall legal structure of

the Office of the Ombudsman, both under the 1987 Constitution
and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of
the OP and yet expose the Special Prosecutor to the same ills
that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor as
a necessary adjunct of the Ombudsman, aside from his or her
deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by
granting the Ombudsman control and supervision over that

office. This power of control and supervision includes vesting

the Office of the Ombudsman with the power to assign duties to
the Special Prosecutor as he/she may deem fit. Thus, by
constitutional design, the Special Prosecutor is by no means an
ordinary subordinate but one who effectively and directly aids the
Ombudsman in the exercise of his/her duties, which include
investigation and prosecution of officials in the Executive
Department.
105

Ombudsman and is, in fact, separate and distinct from the latter.
In debunking that argument, the Court said:

1wphi1

Under Section 11(4) of RA No. 6770, the Special Prosecutor

handles the prosecution of criminal cases within the jurisdiction of
the Sandiganbayan and this prosecutorial authority includes highranking executive officials. For emphasis, subjecting the Special
Prosecutor to disciplinary and removal powers of the President,
whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special
Prosecutor, would seriously place the independence of the Office
of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly
made part of the composition of the Office of the Ombudsman,
the role it performs as an organic component of that Office
militates against a differential treatment between the
Ombudsmans Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the Ombudsman
must be equally true, not only for her Deputies but, also for other
lesser officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman, the Court was confronted
with an argument that, at bottom, the Office of the Special
Prosecutor is not a subordinate agency of the Office of the
106

Firstly, the petitioners misconstrue Commissioner Romulo's

statement as authority to advocate that the intent of the framers
of the 1987 Constitution was to place the Office of the Special
Prosecutor under the Office of the President. Xxx
In the second place, Section 7 of Article XI expressly provides
that the then existing Tanodbayan, to be henceforth known as the
Office of the Special Prosecutor, "shall continue to function and
exercise its powers as now or hereafter may be provided by law,
except those conferred on the Office of the Ombudsman created
under this Constitution." The underscored phrase evidently refers
to the Tanodbayan's powers under P.D. No. 1630 or subsequent
amendatory legislation. It follows then that Congress may remove
any of the Tanodbayan's/Special Prosecutor's powers under P.D.
N0. 1630 or grant it other powers, except those powers conferred
by the Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that
by express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may "exercise such other powers
or perform functions or duties as may be provided by law," it is
indubitable then that Congress has the power to place the Office
of the Special Prosecutor under the Office of the Ombudsman.
107

Thus, under the present Constitution, there is every reason to

treat the Special Prosecutor to be at par with the Ombudsman's
deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence
under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7, the
Court resolved to reverse its September 4, 2012 Decision insofar
as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by granting
disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the
Ombudsman.
108

However, by another vote of 8-7, the Court resolved to maintain

the validity of Section 8(2) of RA No. 6770 insofar as Sulit is
concerned. The Court did not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the
latter enjoys under the Constitution.
109

WHEREFORE, premises considered, the Court resolves to

declare Section 8(2) UNCONSTITUTIONAL. This ruling renders
any further ruling on the dismissal of Deputy Ombudsman Emilio
Gonzales III unnecessary, but is without prejudice to the power of
the Ombudsman to conduct an administrative investigation, if
warranted, into the possible administrative liability of Deputy
Ombudsman Emilio Gonzales III under pertinent Civil Service
laws, rules and regulations.
SO ORDERED.

petitioner filed with the Public Service Commission an application

for authorization to operate ten additional new Brockway trucks
(case No. 56641), on the ground that they were needed to comply
with the terms and conditions of its existing certificates and as a
result of the application of the Eight Hour Labor Law. In the
decision of September 26, 1939, granting the petitioner's
application for increase of equipment, the Public Service
Commission ordered:

G.R. No. 47065

June 26, 1940

PANGASINAN TRANSPORTATION CO., INC., petitioner,

vs.
THE PUBLIC SERVICE COMMISSION, respondent.
C. de G. Alvear for petitioner.
Evaristo R. Sandoval for respondent.
LAUREL, J.:
The petitioner has been engaged for the past twenty years in the
business of transporting passengers in the Province of
Pangasinan and Tarlac and, to a certain extent, in the Province of
Nueva Ecija and Zambales, by means of motor vehicles
commonly known as TPU buses, in accordance with the terms
and conditions of the certificates of public convenience issued in
its favor by the former Public Utility Commission in cases Nos.
24948, 30973, 36830, 32014 and 53090. On August 26, 1939, the

Y de acuerdo con que se provee por el articulo 15 de la

ley No. 146 del Commonwealth, tal como ha sido
enmendada por el articulo 1 de la Ley No. 454, por la
presente se enmienda las condiciones de los certificados
de convenciencia publica expedidos en los expedientes
Nos. 24948, 30973, 36831, 32014 y la authorizacion el el
expediente No. 53090, asi que se consideran
incorporadas en los mismos las dos siguientes
condiciones:
Que los certificados de conveniencia publica y
authorizacion arriba mencionados seran validos y
subsistentes solamente durante de veinticinco (25) anos,
contados desde la fecha de la promulgacion de esta
decision.
Que la empresa de la solicitante porda ser adquirida por
el Commonwealth de Filipinas o por alguna dependencia
del mismo en cualquier tiempo que lo deseare previo
pago del precio d costo de su equipo util, menos una
depreciacion razonable que se ha fijar por la Comision al
tiempo de su adquisicion.

Not being agreeable to the two new conditions thus incorporated

in its existing certificates, the petitioner filed on October 9, 1939 a
motion for reconsideration which was denied by the Public
Service Commission on November 14, 1939. Whereupon, on
November 20, 1939, the present petition for a writ
of certiorari was instituted in this court praying that an order be
issued directing the secretary of the Public Service Commission
to certify forthwith to this court the records of all proceedings in
case No. 56641; that this court, after hearing, render a decision
declaring section 1 of Commonwealth Act No. 454
unconstitutional and void; that, if this court should be of the
opinion that section 1 of Commonwealth Act No. 454 is
constitutional, a decision be rendered declaring that the
provisions thereof are not applicable to valid and subsisting
certificates issued prior to June 8, 1939. Stated in the language of
the petitioner, it is contended:
1. That the legislative powers granted to the Public
Service Commission by section 1 of Commonwealth Act
No. 454, without limitation, guide or rule except the
unfettered discretion and judgment of the Commission,
constitute a complete and total abdication by the
Legislature of its functions in the premises, and for that
reason, the Act, in so far as those powers are concerned,
is unconstitutional and void.
2. That even if it be assumed that section 1 of
Commonwealth Act No. 454, is valid delegation of
legislative powers, the Public Service Commission has
exceeded its authority because: (a) The Act applies only
to future certificates and not to valid and subsisting
certificates issued prior to June 8, 1939, when said Act

took effect, and (b) the Act, as applied by the

Commission, violates constitutional guarantees.
Section 15 of Commonwealth Act No. 146, as amended by
section 1 of Commonwealth Act No. 454, invoked by the
respondent Public Service Commission in the decision
complained of in the present proceedings, reads as follows:
With the exception to those enumerated in the preceding
section, no public service shall operate in the Philippines
without possessing a valid and subsisting certificate from
the Public Service Commission, known as "certificate of
public convenience," or "certificate of convenience and
public necessity," as the case may be, to the effect that
the operation of said service and the authorization to do
business will promote the public interests in a proper and
suitable manner.
The Commission may prescribed as a condition for the
issuance of the certificate provided in the preceding
paragraph that the service can be acquired by the
Commonwealth of the Philippines or by any
instrumentality thereof upon payment of the cost price of
its useful equipment, less reasonable depreciation; and
likewise, that the certificate shall valid only for a definite
period of time; and that the violation of any of these
conditions shall produce the immediate cancellation of the
certificate without the necessity of any express action on
the part of the Commission.
In estimating the depreciation, the effect of the use of the
equipment, its actual condition, the age of the model, or

other circumstances affecting its value in the market shall

be taken into consideration.
The foregoing is likewise applicable to any extension or
amendment of certificates actually force and to those
which may hereafter be issued, to permits to modify
itineraries and time schedules of public services and to
authorization to renew and increase equipment and
properties.
Under the first paragraph of the aforequoted section 15 of Act No.
146, as amended, no public service can operate without a
certificate of public convenience or certificate of convenience and
public necessity to the effect that the operation of said service
and the authorization to do business will "public interests in a
proper and suitable manner." Under the second paragraph, one
of the conditions which the Public Service Commission may
prescribed the issuance of the certificate provided for in the first
paragraph is that "the service can be acquired by the
Commonwealth of the Philippines or by any instrumental thereof
upon payment of the cost price of its useful equipment, less
reasonable depreciation," a condition which is virtually a
restatement of the principle already embodied in the Constitution,
section 6 of Article XII, which provides that "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. "Another condition which the Commission may
prescribed, and which is assailed by the petitioner, is that the
certificate "shall be valid only for a definite period of time." As
there is a relation between the first and second paragraphs of
said section 15, the two provisions must be read and interpreted

together. That is to say, in issuing a certificate, the Commission

must necessarily be satisfied that the operation of the service
under said certificate during a definite period fixed therein "will
promote the public interests in a proper and suitable manner."
Under section 16 (a) of Commonwealth Act. No. 146 which is a
complement of section 15, the Commission is empowered to
issue certificates of public convenience whenever it "finds that the
operation of the public service proposed and the authorization to
do business will promote the public interests in a proper and
suitable manner." Inasmuch as the period to be fixed by the
Commission under section 15 is inseparable from the certificate
itself, said period cannot be disregarded by the Commission in
determining the question whether the issuance of the certificate
will promote the public interests in a proper and suitable manner.
Conversely, in determining "a definite period of time," the
Commission will be guided by "public interests," the only limitation
to its power being that said period shall not exceed fifty years
(sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII,
sec. 8.) We have already ruled that "public interest" furnishes a
sufficient standard. (People vs.Fernandez and Trinidad, G. R. No.
45655, promulgated June 15, 1938; People vs. Rosenthal and
Osmea, G. R. Nos. 46076 and 46077, promulgated June 12,
1939, citing New York Central Securities Corporation vs. U.S.A.,
287 U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter
Poultry Corporation vs. I.S., 295, 540, 79 Law. ed. 1570, 1585;
Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.)
Section 8 of Article XIII of the Constitution provides, among other
things, that no franchise, certificate, or any other form of
authorization for the operation of a public utility shall be "for a
longer period than fifty years," and when it was ordained, in
section 15 of Commonwealth Act No. 146, as amended by
Commonwealth Act No. 454, that the Public Service Commission

may prescribed as a condition for the issuance of a certificate that

it "shall be valid only for a definite period of time" and, in section
16 (a) that "no such certificates shall be issued for a period of
more than fifty years," the National Assembly meant to give effect
to the aforesaid constitutional mandate. More than this, it has
thereby also declared its will that the period to be fixed by the
Public Service Commission shall not be longer than fifty years. All
that has been delegated to the Commission, therefore, is the
administrative function, involving the use discretion, to carry out
the will of the National Assembly having in view, in addition, the
promotion of "public interests in a proper and suitable manner."
The fact that the National Assembly may itself exercise the
function and authority thus conferred upon the Public Service
Commission does not make the provision in question
constitutionally objectionable.
The theory of the separation of powers is designed by its
originators to secure action and at the same time to forestall
overaction which necessarily results from undue concentration of
powers, and thereby obtain efficiency and prevent deposition.
Thereby, the "rule of law" was established which narrows the
range of governmental action and makes it subject to control by
certain devices. As a corollary, we find the rule prohibiting
delegation of legislative authority, and from the earliest time
American legal authorities have proceeded on the theory that
legislative power must be exercised by the legislature alone. It is
frankness, however, to confess that as one delves into the mass
of judicial pronouncement, he finds a great deal of confusion. One
thing, however, is apparent in the development of the principle of
separation of powers and that is that the maxim of delegatus non
potest delegari or delegata potestas non potest delegari,
attributed to Bracton (De Legius et Consuetedinious Angliae,
edited by G. E. Woodbine, Yale University Press, 1922, vol. 2, p.

167) but which is also recognized in principle in the Roman Law

(D. 17.18.3), has been made to adapt itself to the complexities of
modern governments, giving rise to the adoption, within certain
limits, of the principle of "subordinate legislation," not only in the
United States and England but in practically all modern
governments. (People vs. Rosenthal and Osmea, G. R. Nos.
46076 and 46077, promulgated June 12, 1939.) Accordingly, with
the growing complexity of modern life, the multiplication of the
subjects of governmental regulation, and the increased difficulty
of administering the laws, there is a constantly growing tendency
toward the delegation of greater powers by the legislature, and
toward the approval of the practice by the court. (Dillon Catfish
Drainage Dist, v. Bank of Dillon, 141 S. E. 274, 275, 143 S. Ct.
178; State vs. Knox County, 54 S. W. 2d. 973, 976, 165 Tenn.
319.) In harmony with such growing tendency, this Court, since
the decision in the case of Compaia General de Tabacos de
Filipinas vs. Board of Public Utility Commissioner (34 Phil., 136),
relied upon by the petitioner, has, in instances, extended its seal
of approval to the "delegation of greater powers by the
legislature." (Inchausti Steamship Co. vs. Public Utility
Commissioner, 44 Phil., Autobus Co. vs. De Jesus, 56 Phil., 446;
People vs. Fernandez & Trinidad, G. R. No. 45655, promulgated
June 15, 1938; People vs. Rosenthal & Osmea, G. R. Nos.
46076, 46077, promulgated June 12, 1939; and Robb and
Hilscher vs. People, G. R. No. 45866, promulgated June 12,
1939.).
Under the fourth paragraph of section 15 of Commonwealth Act
No. 146, as amended by Commonwealth Act No. 454, the power
of the Public Service Commission to prescribed the conditions
"that the service can be acquired by the Commonwealth of the
Philippines or by any instrumentality thereof upon payment of the
cost price of its useful equipment, less reasonable," and "that the

certificate shall be valid only for a definite period of time" is

expressly made applicable "to any extension or amendment of
certificates actually in force" and "to authorizations to renew and
increase equipment and properties." We have examined the
legislative proceedings on the subject and have found that these
conditions were purposely made applicable to existing certificates
of public convenience. The history of Commonwealth Act No. 454
reveals that there was an attempt to suppress, by way of
amendment, the sentence "and likewise, that the certificate shall
be valid only for a definite period of time," but the attempt failed:
xxx

xxx

xxx

Sr. CUENCO. Seor Presidente, para otra enmienda. En

la misma pagina, lineas 23 y 24, pido que se supriman las
palabras 'and likewise, that the certificate shall be valid
only for a definite period time.' Esta disposicion del
proyecto autoriza a la Comision de Servicios Publicos a
fijar un plazo de vigencia certificado de conveniencia
publica. Todo el mundo sabe que bo se puede determinar
cuando los intereses del servicio publico requiren la
explotacion de un servicio publico y ha de saber la
Comision de Servisios, si en un tiempo determinado, la
explotacion de algunos buses en cierta ruta ya no tiene
de ser, sobre todo, si tiene en cuenta; que la explotacion
de los servicios publicos depende de condiciones
flutuantes, asi como del volumen como trafico y de otras
condiciones. Ademas, el servicio publico se concede por
la Comision de Servicios Publicos el interes publico asi lo
exige. El interes publico no tiene duracion fija, no es
permanente; es un proceso mas o menos indefinido en
cuanto al tiempo. Se ha acordado eso en el caucus de
anoche.

EL PRESIDENTE PRO TEMPORE. Que dice el

Comite?
Sr. ALANO. El Comite siente tener que rechazar esa
enmienda, en vista de que esto certificados de
conveniencia publica es igual que la franquicia: sepuede
extender. Si los servicios presentados por la compaia
durante el tiempo de su certificado lo require, puede pedir
la extension y se le extendera; pero no creo conveniente
el que nosotros demos un certificado de conveniencia
publica de una manera que podria pasar de cincuenta
anos, porque seria anticonstitucional.
xxx

xxx

xxx

By a majority vote the proposed amendment was defeated.

(Sesion de 17 de mayo de 1939, Asamblea Nacional.)
The petitioner is mistaken in the suggestion that, simply because
its existing certificates had been granted before June 8, 1939, the
date when Commonwealth Act No. 454, amendatory of section 15
of Commonwealth Act No. 146, was approved, it must be deemed
to have the right of holding them in perpetuity. Section 74 of the
Philippine Bill provided that "no franchise, privilege, or concession
shall be granted to any corporation except under the conditions
that it shall be subject to amendment, alteration, or repeal by the
Congress of the United States." The Jones Law, incorporating a
similar mandate, provided, in section 28, that "no franchise or
right shall be granted to any individual, firm, or corporation except
under the conditions that it shall be subject to amendment,
alteration, or repeal by the Congress of the United States." Lastly,
the Constitution of the Philippines provided, in section 8 of Article
XIII, that "no franchise or right shall be granted to any individual,

firm, or corporation, except under the condition that it shall be

subject to amendment, alteration, or repeal by the National
Assembly when the public interest so requires." The National
Assembly, by virtue of the Constitution, logically succeeded to the
Congress of the United States in the power to amend, alter or
repeal any franchise or right granted prior to or after the approval
of the Constitution; and when Commonwealth Acts Nos. 146 and
454 were enacted, the National Assembly, to the extent therein
provided, has declared its will and purpose to amend or alter
existing certificates of public convenience.
Upon the other hand, statutes enacted for the regulation of public
utilities, being a proper exercise by the state of its police power,
are applicable not only to those public utilities coming into
existence after its passage, but likewise to those already
established and in operation.
Nor is there any merit in petitioner's contention, that,
because of the establishment of petitioner's operations
prior to May 1, 1917, they are not subject to the
regulations of the Commission. Statutes for the regulation
of public utilities are a proper exercise by the state of its
police power. As soon as the power is exercised, all
phases of operation of established utilities, become at
once subject to the police power thus called into
operation. Procedures' Transportation Co. v. Railroad
Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed.
239, Law v. Railroad Commission, 184 Cal. 737, 195 Pac.
423, 14 A. L. R. 249. The statute is applicable not only to
those public utilities coming into existence after its
passage, but likewise to those already established and in
operation. The 'Auto Stage and Truck Transportation Act'
(Stats. 1917, c. 213) is a statute passed in pursuance of

the police power. The only distinction recognized in the

statute between those established before and those
established after the passage of the act is in the method
of the creation of their operative rights. A certificate of
public convenience and necessity it required for any new
operation, but no such certificate is required of any
transportation company for the operation which was
actually carried on in good faith on May 1, 1917, This
distinction in the creation of their operative rights in no
way affects the power of the Commission to supervise
and regulate them. Obviously the power of the
Commission to hear and dispose of complaints is as
effective against companies securing their operative
rights prior to May 1, 1917, as against those subsequently
securing such right under a certificate of public
convenience and necessity. (Motor Transit Co. et al. v.
Railroad Commission of California et al., 209 Pac. 586.)
Moreover, Commonwealth Acts Nos. 146 and 454 are not only
the organic acts of the Public Service Commission but are "a part
of the charter of every utility company operating or seeking to
operate a franchise" in the Philippines. (Streator Aqueduct Co. v.
et al., 295 Fed. 385.) The business of a common carrier holds
such a peculiar relation to the public interest that there is
superinduced upon it the right of public regulation. When private
property is "affected with a public interest it ceased to be juris
privati only." When, therefore, one devotes his property to a use
in which the public has an interest, he, in effect, grants to the
public an interest in that use, and must submit to be controlled by
the public for the common good, to the extent of the interest he
has thus created. He may withdraw his grant by discounting the
use, but so long as he maintains the use he must submit to
control. Indeed, this right of regulation is so far beyond question

that it is well settled that the power of the state to exercise

legislative control over public utilities may be exercised through
boards of commissioners. (Fisher vs.Yangco Steamship
Company, 31 Phil., 1, citing Munn vs. Illinois, 94 U.S. 113;
Georgia R. & Bkg. Co. vs. Smith, 128 U.S. 174; Budd vs. New
York, 143 U.S. 517; New York etc. R. Co. vs. Bristol 151 U.S. 556,
571; Connecticut etc. R. Co. vs. Woodruff, 153 U.S. 689;
Louisville etc. Ry Co. vs. Kentucky, 161 U.S. 677, 695.) This right
of the state to regulate public utilities is founded upon the police
power, and statutes for the control and regulation of utilities are a
legitimate exercise thereof, for the protection of the public as well
as of the utilities themselves. Such statutes are, therefore, not
unconstitutional, either impairing the obligation of contracts,
taking property without due process, or denying the equal
protection of the laws, especially inasmuch as the question
whether or not private property shall be devoted to a public and
the consequent burdens assumed is ordinarily for the owner to
decide; and if he voluntarily places his property in public service
he cannot complain that it becomes subject to the regulatory
powers of the state. (51 C. J., sec. 21, pp. 9-10.) in the light of
authorities which hold that a certificate of public convenience
constitutes neither a franchise nor contract, confers no property
right, and is mere license or privilege. (Burgess vs. Mayor &
Alderman of Brockton, 235 Mass. 95, 100, 126 N. E. 456;
Roberto vs.Commisioners of Department of Public Utilities, 262
Mass. 583, 160 N. E. 321; Scheible vs. Hogan, 113 Ohio St. 83,
148 N. E. 581; Martz vs. Curtis [J. L.] Cartage Co. [1937], 132
Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab
Co. vs. Sabellano, 59 Phil., 773.)
Whilst the challenged provisions of Commonwealth Act No. 454
are valid and constitutional, we are, however, of the opinion that
the decision of the Public Service Commission should be

reversed and the case remanded thereto for further proceedings

for the reason now to be stated. The Public Service Commission
has power, upon proper notice and hearing, "to amend, modify or
revoke at any time any certificate issued under the provisions of
this Act, whenever the facts and circumstances on the strength of
which said certificate was issued have been misrepresented or
materially changed." (Section 16, par. [m], Commonwealth Act
No. 146.) The petitioner's application here was for an increase of
its equipment to enable it to comply with the conditions of its
certificates of public convenience. On the matter of limitation to
twenty five (25) years of the life of its certificates of public
convenience, there had been neither notice nor opportunity given
the petitioner to be heard or present evidence. The Commission
appears to have taken advantage of the petitioner to augment
petitioner's equipment in imposing the limitation of twenty-five
(25) years which might as well be twenty or fifteen or any number
of years. This is, to say the least, irregular and should not be
sanctioned. There are cardinal primary rights which must be
respected even in proceedings of this character. The first of these
rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit
evidence in support thereof. In the language of Chief Justice
Hughes, in Morgan v. U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82
Law. ed. 1129), "the liberty and property of the citizen shall be
protected by the rudimentary requirements of fair play." Not only
must the party be given an opportunity to present his case and to
adduce evidence tending to establish the rights which he asserts
but the tribunal must consider the evidence presented. (Chief
Justice Hughes in Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906,
80 :Law. ed. 1288.) In the language of this Court in Edwards vs.
McCoy (22 Phil., 598), "the right to adduce evidence, without the
corresponding duty on the part of the board to consider it, is vain.
Such right is conspicuously futile if the person or persons to

whom the evidence is presented can thrust it aside without or

consideration." While the duty to deliberate does not impose the
obligation to decide right, it does imply a necessity which cannot
be disregarded, namely, that of having something to support its
decision. A decision with absolutely nothing to support it is a
nullity, at least when directly attacked.
(Edwards vs. McCoy, supra.) This principle emanates from the
more fundamental principle that the genius of constitutional
government is contrary to the vesting of unlimited power
anywhere. Law is both a grant and a limitation upon power.
The decision appealed from is hereby reversed and the case
remanded to the Public Service Commission for further
proceedings in accordance with law and this decision, without any
pronouncement regarding costs. So ordered.

DAVIDE, JR., J.:

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and
MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO
PEDROSA & CARMEN PEDROSA, in their capacities as
founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL
ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and
LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitionersintervenors.

The heart of this controversy brought to us by way of a petition for

prohibition under Rule 65 of the Rules of Court is the right of the
people to directly propose amendments to the Constitution
through the system of initiative under Section 2 of Article XVII of
the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people
of this country, except perhaps to a few scholars, before the
drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent 1 and the main
sponsor 2 of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative". 3 Indeed it is,
for both under the 1935 and 1973 Constitutions, only two methods of
proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all
its members and (2) by a constitutional convention. 4 For this and the
other reasons hereafter discussed, we resolved to give due course to
this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin
filed with public respondent Commission on Elections (hereafter,
COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin
Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature
gathering all over the country;
2. Causing the necessary publications of said
Order and the attached "Petition for Initiative on

the 1987 Constitution, in newspapers of general

and local circulation;
3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist Petitioners
and volunteers, in establishing signing stations at
the time and on the dates designated for the
purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for People's Initiative, 6 a group of citizens desirous to
avail of the system intended to institutionalize people power; that he
and the members of the Movement and other volunteers intend to
exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution;
that the exercise of that power shall be conducted in proceedings
under the control and supervision of the COMELEC; that, as required
in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal
election registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other
volunteers can gather signatures, it is necessary that the time and
dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people
of the electoral process involved, it is likewise necessary that the
said order, as well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, 7Section 4 of Article
VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the
petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which consist

in the deletion from the aforecited sections of the provisions

concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM

LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE
SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4
OF ARTICLE VII, AND SECTION 8 OF ARTICLE
X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be
submitted to the people, and after it is signed by at least twelve
per cent of the total number of registered voters in the country it
will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given
the number UND 96-037 (INITIATIVE), the COMELEC, through
its Chairman, issued an Order 11 (a) directing Delfin "to cause the
publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of
hearing in three (3) daily newspapers of general circulation at his
own expense" not later than 9 December 1996; and (b) setting the
case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the
following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the People's Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator
Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion

to Dismiss the Delfin Petition on the ground that it is not the initiatory
petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and

the oppositors to file their "memoranda and/or
oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin
filed this special civil action for prohibition raising the following
arguments:
(1) The constitutional provision on
people's initiative to amend the Constitution can
only be implemented by law to be passed by
Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing
and Regulating Constitution Amendments by
People's Initiative, which petitioner Senator
Santiago filed on 24 November 1995, is still
pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three
systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation.
However, it failed to provide any subtitle on
initiative on the Constitution, unlike in the other
modes of initiative, which are specifically provided
for in Subtitle II and Subtitle III. This deliberate
omission indicates that the matter of people's
initiative to amend the Constitution was left to
some future law. Former Senator Arturo Tolentino

stressed this deficiency in the law in his privilege

speech delivered before the Senate in 1994:
"There is not a single word in that law which can
be considered as implementing [the provision on
constitutional initiative]. Such implementing
provisions have been obviously left to a separate
law.
(3) Republic Act No. 6735 provides for the
effectivity of the law after publication in print
media. This indicates that the Act covers only laws
and not constitutional amendments because the
latter take effect only upon ratification and not
after publication.
(4) COMELEC Resolution No. 2300, adopted on
16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and
referendum on national and local laws, is ultra
vires insofar asinitiative on amendments to the
Constitution is concerned, since the COMELEC
has no power to provide rules and regulations for
the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the
Constitution to pass the implementing law.
(5) The people's initiative is limited
to amendments to the Constitution, not
to revision thereof. Extending or lifting of term
limits constitutes a revision and is, therefore,
outside the power of the people's initiative.

(6) Finally, Congress has not yet appropriated

funds for people's initiative; neither the COMELEC
nor any other government department, agency, or
office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for
prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the people's initiative spearheaded by
PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to
mention the millions of additional pesos in expenses which would
be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure
and calling for the admission of a taxpayer's and legislator's
suit. 14 Besides, there is no other plain, speedy, and adequate
remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten
days from notice; and (b) issued a temporary restraining order,
effective immediately and continuing until further orders, enjoining
public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative to amend
the Constitution.
On 2 January 1997, private respondents, through Atty Quadra,
filed their Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL
EXPENSES TO THE NATIONAL TREASURY

FOR GENERAL REGISTRATION OF VOTERS

AMOUNTING TO AT LEAST PESOS: ONE
HUNDRED EIGHTY MILLION (P180,000,000.00)"
IF THE "COMELEC GRANTS THE PETITION
FILED BY RESPONDENT DELFIN BEFORE THE
COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT
BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF
ACTIVITIES AND EXPENDITURES SUBMITTED
TO THE COMELEC. THE ESTIMATED COST OF
THE DAILY PER DIEM OF THE SUPERVISING
SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE
PAID BY DELFIN AND HIS VOLUNTEERS IS
P2,571,200.00;
3. THE PENDING PETITION BEFORE THE
COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS
DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY
JURISDICTION" UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS.COMELEC,
ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST

4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO
THE CONSTITUTION. SENATOR DEFENSORSANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300
PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT
SEPTEMBER 26, 1996 DECISION IN THE CASE
OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416
WHERE THE HONORABLE COURT SAID: "THE
COMMISSION ON ELECTIONS CAN DO NO
LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES
FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 CONTAINS A
PROVISION DELEGATING TO THE COMELEC
THE POWER TO "PROMULGATE SUCH RULES
AND REGULATIONS AS MAY BE NECESSARY
TO CARRY OUT THE PURPOSES OF THIS
ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS
ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE

TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION
IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A
RE-EXAMINATION OF THE ENTIRE
DOCUMENT TO DETERMINE HOW AND TO
WHAT EXTENT IT SHOULD BE ALTERED." (PP.
412-413, 2ND. ED. 1992, 1097 PHIL.
CONSTITUTION, BY JOAQUIN G. BERNAS,
S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own
behalf a Comment 16 which starts off with an assertion that the
instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative
on the 1987 Constitution'. . . which is not formally filed yet." What he
filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory
Petition," which was legally necessary to start the signature
campaign to amend the Constitution or to put the movement to
gather signatures under COMELEC power and function. On the
substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is
a law, R.A. No. 6735, which governs the conduct
of initiative to amend the Constitution. The
absence therein of a subtitle for such initiative is
not fatal, since subtitles are not requirements for
the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically
provides that the proposition in an initiative to

amend the Constitution approved by the majority

of the votes cast in the plebiscite shall become
effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No.
2300 is ultra vires is contradicted by (a) Section 2,
Article IX-C of the Constitution, which grants the
COMELEC the power to enforce and administer
all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and
recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such
rules and regulations as may be necessary to
carry out the purposes of the Act.
(4) The proposed initiative does not involve
a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more
specifically, only those which lay term limits. It
does not seek to reexamine or overhaul the entire
document.
As to the public expenditures for registration of voters, Delfin
considers petitioners' estimate of P180 million as unreliable, for
only the COMELEC can give the exact figure. Besides, if there
will be a plebiscite it will be simultaneous with the 1997 Barangay
Elections. In any event, fund requirements for initiative will be a
priority government expense because it will be for the exercise of
the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also
on 2 January 1997, the Office of the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia,

people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its
Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution
and defines the same as the power to propose
amendments to the Constitution. Likewise, its
Section 5 repeatedly mentions initiative on the
Constitution.
(2) A separate subtitle on initiative on the
Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system
of initiative is deemed included in the subtitle on
National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions
of the law when he claimed that nothing therein
was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent
nor a material proof that R.A. No. 6735 does not
deal with initiative on the Constitution.
(4) Extension of term limits of elected officials
constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly
issued under Section 20 of R.A. No. 6735 and
under the Omnibus Election Code. The rulemaking power of the COMELEC to implement the
provisions of R.A. No. 6735 was in fact upheld by

this Court in Subic Bay Metropolitan Authority

vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned
Comments and the Motion to Lift Temporary Restraining Order
filed by private respondents through Atty. Quadra, as well as the
latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment
he filed was for the Pedrosas; and (c) granted the Motion for
Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20
January 1997; and (d) set the case for hearing on 23 January
1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition
in Intervention, which was later replaced by an Amended Petition
in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a
mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin
Bernas, S.J., 18 it would involve a change from a
political philosophy that rejects unlimited tenure to
one that accepts unlimited tenure; and although the
change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization
of elections and on the State policy of guaranteeing
equal access to opportunities for public service and
prohibiting political dynasties. 19 Arevision cannot be
done by initiative which, by express provision of

Section 2 of Article XVII of the Constitution, is limited

to amendments.

(2) The prohibition against reelection of the

President and the limits provided for all other
national and local elective officials are based on
the philosophy of governance, "to open up the
political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to
break the concentration of political and economic
powers in the hands of a few, and to promote
effective proper empowerment for participation in
policy and decision-making for the common
good"; hence, to remove the term limits is to
negate and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the
purpose of initiative, particularly in a conflict-ofinterest situation. Initiative is intended as a
fallback position that may be availed of by the
people only if they are dissatisfied with the
performance of their elective officials, but not as a
premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself
to be called the enabling law that implements the
people's initiative on amendments to the
Constitution. It fails to state (a) the proper parties
who may file the petition, (b) the appropriate agency
before whom the petition is to be filed, (c) the
contents of the petition, (d) the publication of the
same, (e) the ways and means of gathering the
signatures of the voters nationwide and 3% per

legislative district, (f) the proper parties who may

oppose or question the veracity of the signatures, (g)
the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the
appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of
funds for such people's initiative. Accordingly, there
being no enabling law, the COMELEC has no
jurisdiction to hear Delfin's petition.

(5) The deficiency of R.A. No. 6735 cannot be

rectified or remedied by COMELEC Resolution
No. 2300, since the COMELEC is without
authority to legislate the procedure for a
people's initiativeunder Section 2 of Article XVII of
the Constitution. That function exclusively pertains
to Congress. Section 20 of R.A. No. 6735 does
not constitute a legal basis for the Resolution, as
the former does not set a sufficient standard for a
valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that
implements the people's right to initiate constitutional amendments.
This law is a consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a
sponsorship speech thereon. He likewise submits that the
COMELEC was empowered under Section 20 of that law to
promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction to
take cognizance of the Delfin Petition and to order its publication
because the said petition is not the initiatory pleading contemplated
under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in

an initiative on the Constitution is the filing of a petition for initiative

which is signedby the required number of registered voters. He also
submits that the proponents of a constitutional amendment cannot
avail of the authority and resources of the COMELEC to assist them
is securing the required number of signatures, as the COMELEC's
role in an initiative on the Constitution is limited to the determination
of the sufficiency of the initiative petition and the call and supervision
of a plebiscite, if warranted.

On 20 January 1997, LABAN filed a Motion for Leave to

Intervene.
The following day, the IBP filed a Motion for Intervention to which
it attached a Petition in Intervention raising the following
arguments:
(1) Congress has failed to enact an enabling law
mandated under Section 2, Article XVII of the
1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot
substitute for the required implementing law on
the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal
defect in that it does not have the required
number of signatures.
(4) The petition seeks, in effect a revision of the
Constitution, which can be proposed only by
Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting
the Motions for Intervention filed by the DIK and MABINI and by

the IBP, as well as the Motion for Leave to Intervene filed by

LABAN; (b) admitting the Amended Petition in Intervention of DIK
and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments
on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from
receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued
on the following pivotal issues, which the Court formulated in light
of the allegations and arguments raised in the pleadings so far
filed:
1. Whether R.A. No. 6735, entitled An Act
Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor,
was intended to include or cover initiative on
amendments to the Constitution; and if so,
whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution
No. 2300 (In re: Rules and Regulations Governing
the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on
amendments to the Constitution is valid,
considering the absence in the law of specific
provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective

national and local officials, as proposed in the
draft "Petition for Initiative on the 1987
Constitution," would constitute a revision of, or an
amendment to, the Constitution.
4. Whether the COMELEC can take cognizance
of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and
dates for signature gathering; (b) instructing
municipal election officers to assist Delfin's
movement and volunteers in establishing
signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed
Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to
take cognizance of the petition when there is a
pending case before the COMELEC.
After hearing them on the issues, we required the parties to
submit simultaneously their respective memoranda within twenty
days and requested intervenor Senator Roco to submit copies of
the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention
wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have
dismissed the Delfin Petition for failure to state a sufficient cause
of action and that the Commission's failure or refusal to do so
constituted grave abuse of discretion amounting to lack of
jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions

of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No.
21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee
on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill
No. 21505 and Senate Bill No. 17.

28. The Comelec has no jurisdiction to take

cognizance of the petition filed by private
respondent Delfin. This being so, it becomes
imperative to stop the Comelec from proceeding
any further, and under the Rules of Court, Rule
65, Section 2, a petition for prohibition is the
proper remedy.

Private respondents Alberto and Carmen Pedrosa filed their

Consolidated Comments on the Petitions in Intervention of
Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter
filed, in due time, their separate memoranda. 24

29. The writ of prohibition is an extraordinary

judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from
usurping a jurisdiction with which it is not legally
vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the
highly divisive and adverse environmental
consequences on the body politic of the
questioned Comelec order. The consequent
climate of legal confusion and political instability
begs for judicial statesmanship.

As we stated in the beginning, we resolved to give due course to

this special civil action.
For a more logical discussion of the formulated issues, we shall
first take up the fifth issue which appears to pose a prejudicial
procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE
PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this
Court to take cognizance of this special civil action when there is
a pending case before the COMELEC. The petitioners provide an
affirmative answer. Thus:

30. In the final analysis, when the system of

constitutional law is threatened by the political
ambitions of man, only the Supreme Court
can save a nation in peril and uphold the
paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC
a motion to dismiss the Delfin Petition on the ground that the
COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them to

submit within five days their memoranda or

oppositions/memoranda. 27 Earlier, or specifically on 6 December
1996, it practically gave due course to the Delfin Petition by ordering
Delfin to cause the publication of the petition, together with the
attached Petition for Initiative, the signature form, and the notice of
hearing; and by setting the case for hearing. The COMELEC's failure
to act on Roco's motion to dismiss and its insistence to hold on to the
petition rendered ripe and viable the instant petition under Section 2
of Rule 65 of the Rules of Court, which provides:

Sec. 2. Petition for prohibition. Where the

proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or
ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and
there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified
petition in the proper court alleging the facts with
certainty and praying that judgment be rendered
commanding the defendant to desist from further
proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the
COMELEC has no jurisdiction over the Delfin Petition because
the said petition is not supported by the required minimum
number of signatures of registered voters. LABAN also asserts
that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required
number of signatures. In light of these claims, the instant case
may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his

Memorandum, this Court may brush aside technicalities of
procedure in
cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr. 28
A party's standing before this Court is a
procedural technicality which it may, in the
exercise of its discretion, set aside in view of the
importance of issues raised. In the landmark
Emergency Powers Cases, this Court brushed
aside this technicality because the transcendental
importance to the public of these cases demands
that they be settled promptly and definitely,
brushing aside, if we must, technicalities of
procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters, of which every legislative district
must be represented by at least three per
centum of the registered voters therein. No

amendment under this section shall be authorized

within five years following the ratification of this
Constitution nor oftener than once every five
years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas,
a member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot
operate. Thus, although this mode of amending
the Constitution is a mode of amendment which
bypasses congressional action, in the last
analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose
amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the
Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution
has recognized or granted that right, the people cannot
exercise it if Congress, for whatever reason, does not
provide for its implementation.
This system of initiative was originally included in Section 1 of the
draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332). 30 That section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may

be proposed:
(a) by the National Assembly upon a vote of threefourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative
as provided for in Article___ Section ___of the
Constitution. 31
After several interpellations, but before the period of
amendments, the Committee submitted a new formulation
of the concept of initiative which it denominated as
Section 2; thus:
MR. SUAREZ. Thank you, Madam
President. May we respectfully call
attention of the Members of the
Commission that pursuant to the
mandate given to us last night, we
submitted this afternoon a
complete Committee Report No. 7
which embodies the proposed
provision governing the matter of
initiative. This is now covered by
Section 2 of the complete
committee report. With the
permission of the Members, may I
quote Section 2:

The people may, after five years from the date of

the last plebiscite held, directly propose
amendments to this Constitution thru initiative
upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the
original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for
carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President,
just two simple, clarificatory
questions.
First, on Section 1 on the matter of
initiative upon petition of at least
10 percent, there are no details in
the provision on how to carry this
out. Do we understand, therefore,
that we are leaving this matter to
the legislature?
MR. SUAREZ. That is right,
Madam President.
FR. BERNAS. And do we also
understand, therefore, that for as
long as the legislature does not
pass the necessary implementing
law on this, this will not operate?

MR. SUAREZ. That matter was

also taken up during the
committee hearing, especially with
respect to the budget
appropriations which would have
to be legislated so that the
plebiscite could be called. We
deemed it best that this matter be
left to the legislature. The
Gentleman is right. In any event,
as envisioned, no amendment
through the power of initiative can
be called until after five years from
the date of the ratification of this
Constitution. Therefore, the first
amendment that could be
proposed through the exercise of
this initiative power would be after
five years. It is reasonably
expected that within that five-year
period, the National Assembly can
come up with the appropriate
rules governing the exercise of
this power.
FR. BERNAS. Since the matter
is left to the legislature the
details on how this is to be carried
out is it possible that, in effect,
what will be presented to the
people for ratification is the work
of the legislature rather than of the

people? Does this provision

exclude that possibility?
MR. SUAREZ. No, it does not
exclude that possibility because
even the legislature itself as a
body could propose that
amendment, maybe individually or
collectively, if it fails to muster the
three-fourths vote in order to
constitute itself as a constituent
assembly and submit that
proposal to the people for
ratification through the process of
an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand
from the sponsor that the intention
in the proposal is to vest
constituent power in the people to
amend the Constitution?
MR. SUAREZ. That is absolutely
correct, Madam President.
MS. AQUINO. I fully concur with
the underlying precept of the
proposal in terms of
institutionalizing popular
participation in the drafting of the
Constitution or in the amendment

thereof, but I would have a lot of

difficulties in terms of accepting
the draft of Section 2, as written.
Would the sponsor agree with me
that in the hierarchy of legal
mandate, constituent power has
primacy over all other legal
mandates?
MR. SUAREZ. The Commissioner
is right, Madam President.
MS. AQUINO. And would the
sponsor agree with me that in the
hierarchy of legal values, the
Constitution is source of all legal
mandates and that therefore we
require a great deal of
circumspection in the drafting and
in the amendments of the
Constitution?
MR. SUAREZ. That proposition is
nondebatable.
MS. AQUINO. Such that in order
to underscore the primacy of
constituent power we have a
separate article in the constitution
that would specifically cover the
process and the modes of
amending the Constitution?

MR. SUAREZ. That is right,

Madam President.
MS. AQUINO. Therefore, is the
sponsor inclined, as the provisions
are drafted now, to again concede
to the legislature the process or
the requirement of determining the
mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ. The matter of
implementing this could very well
be placed in the hands of the
National Assembly, not unless we
can incorporate into this provision
the mechanics that would
adequately cover all the
conceivable situations. 33
It was made clear during the interpellations that the
aforementioned Section 2 is limited to proposals to AMEND
not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal
was suggested on the theory that
this matter of initiative, which
came about because of the
extraordinary developments this
year, has to be separated from the
traditional modes of amending the
Constitution as embodied in
Section 1. The committee

members felt that this system of

initiative should not extend to the
revision of the entire Constitution,
so we removed it from the
operation of Section 1 of the
proposed Article on Amendment or
Revision. 34
xxx xxx xxx

MS. AQUINO. In which case, I am

seriously bothered by providing
this process of initiative as a
separate section in the Article on
Amendment. Would the sponsor
be amenable to accepting an
amendment in terms of realigning
Section 2 as another
subparagraph (c) of Section 1,
instead of setting it up as another
separate section as if it were a
self-executing provision?
MR. SUAREZ. We would be
amenable except that, as we
clarified a while ago, this process
of initiative is limited to the matter
of amendment and should not
expand into a revision which
contemplates a total overhaul of
the Constitution. That was the
sense that was conveyed by the
Committee.

MS. AQUINO. In other words, the

Committee was attempting to
distinguish the coverage of modes
(a) and (b) in Section 1 to include
the process of revision; whereas
theprocess of initiation to amend,
which is given to the public, would
only apply to amendments?
MR. SUAREZ. That is right. Those
were the terms envisioned in the
Committee. 35
Amendments to the proposed Section 2 were thereafter
introduced by then Commissioner Hilario G. Davide, Jr., which the
Committee accepted. Thus:
MR. DAVIDE. Thank you Madam
President. I propose to substitute
the entire Section 2 with the
following:
MR. DAVIDE. Madam President, I
have modified the proposed
amendment after taking into
account the modifications
submitted by the sponsor himself
and the honorable Commissioners
Guingona, Monsod, Rama, Ople,
de los Reyes and Romulo. The
modified amendment in
substitution of the proposed
Section 2 will now read as follows:

"SECTION 2. AMENDMENTS
TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL
NUMBER Of REGISTERED
VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT
LEAST THREE PERCENT OF
THE REGISTERED VOTERS
THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE
RATIFICATION OF THIS
CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY
SHALL BY LAW PROVIDE FOR
THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President,
considering that the proposed
amendment is reflective of the
sense contained in Section 2 of
our completed Committee Report

No. 7, we accept the proposed

amendment. 36
The interpellations which ensued on the proposed modified
amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:
MR. ROMULO. Under
Commissioner Davide's
amendment, is it possible for the
legislature to set forth certain
procedures to carry out the
initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the
Commissioner's amendment does
not prevent the legislature from
asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner
is correct. In other words, the
implementation of this particular
right would be subject to
legislation, provided the legislature
cannot determine anymore the
percentage of the requirement.

MR. ROMULO. But the

procedures, including the
determination of the proper form
for submission to the people, may
be subject to legislation.
MR. DAVIDE. As long as it will not
destroy the substantive right to
initiate. In other words, none of the
procedures to be proposed by the
legislative body must diminish or
impair the right conceded here.
MR. ROMULO. In that provision of
the Constitution can the
procedures which I have
discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified
amendment strictly confines initiative to AMENDMENTS to
NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure,
Madam President.
MR. MAAMBONG. My first
question: Commissioner Davide's
proposed amendment on line 1
refers to "amendment." Does it not
cover the word "revision" as
defined by Commissioner Padilla

when he made the distinction

between the words "amendments"
and "revision"?
MR. DAVIDE. No, it does not,
because "amendments" and
"revision" should be covered by
Section 1. So insofar as initiative
is concerned, it can only relate to
"amendments" not "revision." 38
Commissioner Davide further emphasized that the process of
proposing amendments through initiative must be more rigorous
and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to
be made that under this proposal,
what is involved is an amendment
to the Constitution. To amend a
Constitution would ordinarily
require a proposal by the National
Assembly by a vote of threefourths; and to call a constitutional
convention would require a higher
number. Moreover, just to submit
the issue of calling a constitutional
convention, a majority of the
National Assembly is required, the
import being that the process of
amendment must be made more
rigorous and difficult than probably
initiating an ordinary legislation or
putting an end to a law proposed

by the National Assembly by way

of a referendum. I cannot agree to
reducing the requirement
approved by the Committee on the
Legislative because it would
require another voting by the
Committee, and the voting as
precisely based on a requirement
of 10 percent. Perhaps, I might
present such a proposal, by way
of an amendment, when the
Commission shall take up the
Article on the Legislative or on the
National Assembly on plenary
sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission
approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam
President. Section 2, as amended,
reads as follows: "AMENDMENT
TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL
NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT

LEAST THREE PERCENT OF

THE REGISTERED VOTERS
THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE
RATIFICATION OF THIS
CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY
SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF
THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions
was approved on second reading on 9 July
1986.41 Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved
on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the
approved Section 2 be amended by changing "percent" to "per
centum" and "thereof" to "therein" and deleting the phrase "by
law" in the second paragraph so that said paragraph reads: The
Congress 43 shall provide for the implementation of the exercise of
this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of

initiative on the Constitution under Section 2 of Article XVII of the
Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise
of this right? Those who answer the question in the affirmative,
like the private respondents and intervenor Senator Roco, point to
us R.A. No. 6735.
There is, of course, no other better way for Congress to
implement the exercise of the right than through the passage of a
statute or legislative act. This is the essence or rationale of the
last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then
reading:
The Congress 45 shall by law provide for the
implementation of the exercise of this right.
with
The Congress shall provide for the
implementation of the exercise of this right.
This substitute amendment was an investiture on
Congress of a power to provide for the rules implementing
the exercise of the right. The "rules" means "the details on
how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended
to cover initiative to propose amendments to the Constitution. The
Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and

Electoral Reforms of the House of Representatives on the basis

of two House Bills referred to it, viz., (a) House Bill No.
497, 47 which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House
Bill No. 988, 48 which dealt with the subject matter of House Bill No.
497, as well as with initiative and referendum under Section 3 of
Article X (Local Government) and initiative provided for in Section 2
of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt
with initiative and referendum concerning ordinances or resolutions
of local government units. The Bicameral Conference Committee
consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft
bill, which was subsequently approved on 8 June 1989 by the
Senate 50and by the House of Representatives. 51 This approved bill
is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to "provide for the implementation of the exercise of the
right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on
amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the
people under a system of initiative and
referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any
legislative body upon compliance with the
requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a

delayed afterthought. That word is neither germane nor
relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier,
initiative on the Constitution is confined only to proposals
to AMEND. The people are not accorded the power to
"directly propose, enact, approve, or reject, in whole or in
part, the Constitution" through the system of initiative.
They can only do so with respect to "laws, ordinances, or
resolutions."
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which
solely referred to a statement of policy on local initiative and
referendum and appropriately used the phrases "propose and
enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that
Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative,
the Act does not provide for the contents of a petition
forinitiative on the Constitution. Section 5, paragraph (c) requires,
among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case
may be. It does not include, as among the contents of the
petition, the provisions of the Constitution sought to be amended,
in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to
be enacted, approved or rejected, amended or
repealed, as the case may be;

fully provide for the implementation of the initiative on

amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the
primacy of interest, or hierarchy of values, the right of the people
to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.

c.2 the proposition;

c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided
therein;
c.5 signatures of the petitioners or registered
voters; and
c.6 an abstract or summary proposition is not
more than one hundred (100) words which shall
be legibly written or printed at the top of every
page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be
enacted, approved or rejected, amended or repealed"
only strengthens the conclusion that Section 2, quoted
earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply
means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to

We cannot accept the argument that the initiative on amendments

to the Constitution is subsumed under the subtitle on National
Initiative and Referendum because it is national in scope. Our
reading of Subtitle II (National Initiative and Referendum) and
Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character. It is "national
initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local
initiative" if what is proposed to be adopted or enacted is a law,
ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of
the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a
petition proposing amendments to the
Constitution;

a.2 Initiative on Statutes which refers to a petition

proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or
ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should
have been a subtitle on initiative on amendments to the
Constitution. 53
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National
Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the
Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as to
the day of the plebiscite.
(c) A national or local initiative proposition
approved by majority of the votes cast in an
election called for the purpose shall become
effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis
supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to
indirect initiative with the legislative bodies of local governments;
thus:

Sec. 11. Indirect Initiative. Any duly accredited

people's organization, as defined by law, may file
a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions
of the COMELEC on the findings of sufficiency or
insufficiency of the petition for initiative or referendum,
which could be petitions for both national and
localinitiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under
subtitle III on Local Initiative and Referendum is
misplaced, 54 since the provision therein applies to both national and
local initiative and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act
shall prevent or preclude the proper courts from
declaring null and void any proposition approved
pursuant to this Act for violation of the Constitution
or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and
care in providing for the details in the implementation of initiative
and referendum on national and local legislation thereby giving
them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent
the initiative on national legislation, the Act provides for the
following:
(a) The required percentage of registered voters to sign the
petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the
required number of votes for its approval;

(h) The setting of a date by the COMELEC for the submission of

the proposition to the registered voters for their approval, which
must be within the period specified therein;

(d) The certification by the COMELEC of the approval of the

proposition;

(i) The issuance of a certification of the result;

(e) The publication of the approved proposition in the Official

Gazette or in a newspaper of general circulation in the
Philippines; and
(f) The effects of the approval or rejection of the proposition.

(g) The issuance of a certification by the COMELEC through its

official in the local government unit concerned as to whether the
required number of signatures have been obtained;

(j) The date of effectivity of the approved proposition;

55

(k) The limitations on local initiative; and

As regards local initiative, the Act provides for the following:

(l) The limitations upon local legislative bodies. 56

(a) The preliminary requirement as to the number of signatures of

registered voters for the petition;

Upon the other hand, as to initiative on amendments to the

Constitution, R.A. No. 6735, in all of its twenty-three sections,
merely (a) mentions, the word "Constitution" in Section 2; (b)
defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in
an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides
for the date of effectivity of the approved proposition.

(b) The submission of the petition to the local legislative body

concerned;
(c) The effect of the legislative body's failure to favorably act
thereon, and the invocation of the power of initiative as a
consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;

There was, therefore, an obvious downgrading of the more

important or the paramount system of initiative. RA. No. 6735
thus delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant lip
service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is

incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution
is concerned. Its lacunae on this substantive matter are fatal and
cannot be cured by "empowering" the COMELEC "to promulgate
such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or
as expressed in a Latin maxim: potestas delegata non delegari
potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section
28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under
Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising
quasi-judicial functions, to promulgate rules and regulations is a
form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be
a showing that the delegation itself is valid. It is valid only if the
law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate
and determinable to which the delegate must conform in the

performance of his functions. 61 A sufficient standard is one which

defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. 62
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT
PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate
rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution
through the system of initiative. It does not have that power under
R.A. No. 6735. Reliance on the COMELEC's power under
Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C
of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the
"sufficient standard" tests.
IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION IN ENTERTAINING
THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full
compliance with the power of Congress to implement the right to
initiate constitutional amendments, or that it has validly vested
upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section
5(b) of R.A. No. 6735, a petition for initiative on the Constitution
must be signed by at least 12% of the total number of registered
voters of which every legislative district is represented by at least
3% of the registered voters therein. The Delfin Petition does not
contain signatures of the required number of voters. Delfin
himself admits that he has not yet gathered signatures and that
the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative
only after its filing. The petition then is theinitiatory pleading.
Nothing before its filing is cognizable by the COMELEC, sitting en
banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of
the petition; 63(2) to issue through its Election Records and Statistics
Office a certificate on the total number of registered voters in each
legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its
election registrars, the signatures on the basis of the registry list of

voters, voters' affidavits, and voters' identification cards used in the

immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A.
No. 6735 and COMELEC Resolution No. 2300, it cannot be
entertained or given cognizance of by the COMELEC. The
respondent Commission must have known that the petition does
not fall under any of the actions or proceedings under the
COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number.
Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a
mere scrap of paper, which should not have been dignified by the
Order of 6 December 1996, the hearing on 12 December 1996,
and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC
acted without jurisdiction or with grave abuse of discretion and
merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of
whether the proposal to lift the term limits of elective national and
local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system.

We feel, however, that the system of initiative to propose

amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the
right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith
DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996
is made permanent as against the Commission on Elections, but
is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

Statement of the case. Petitioners request that respondent

officials be prevented from implementing Republic Act 3040 that
apportions representative districts in this country. It is
unconstitutional and void, they allege, because: (a) it was passed
by the House of Representatives without printed final copies of
the bill having been furnished the Members at least three
calendar days prior to its passage; (b) it was approved more than
three years after the return of the last census of our population;
and (c) it apportioned districts without regard to the number of
inhabitants of the several provinces.

G.R. No. L-18684

September 14, 1961

LAMBERTO MACIAS, LORENZO TEVES, FAUSTO DUGENIO,

ROGACIANO MERCADO and MARIANO
PERDICES, petitioners,
vs.
THE COMMISSION ON ELECTIONS and VICENTE GELLA in
his Capacity as National Treasurer,respondents.
Crispin D. Baizas for petitioners.
Barrios, Garcia and Apostol for respondent Commission on
Elections.
Office of the Solicitor General for respondent Vicente Gella.

BENGZON, C.J.:

Admitting some allegations but denying others, the respondents

aver they were merely complying with their duties under the
statute, which they presume and allege to be constitutional. The
respondent National Treasurer further avers that petitioners have
no personality to bring this action; that a duly certified copy of the
law creates the presumption of its having been passed in
accordance with the requirements of the Constitution (distribution
of printed bills included); that the Director of the Census
submitted an official report on the population of the Philippines in
November, 1960, which report became the basis of the bill; and
that the Act complies with the principle of proportional
representation prescribed by the Constitution..
After hearing the parties and considering their memoranda, this
Court reached the conclusion that the statute be declared invalid,
and, aware of the need of prompt action, issued its brief
resolution of August 23, partly in the following language:
Whereas such Republic Act 3040 clearly violates the said
constitutional provision in several ways namely, (a) it gave
Cebu seven members, while Rizal with a bigger number
of inhabitants got four only; (b) it gave Manila four
members, while Cotabato with a bigger population got
three only; . . .;
Whereas such violation of the Constitutional mandate
renders the law void;

Therefore, without prejudice to the writing of a more

extended opinion passing additionally on other issues
raised in the case, the Court resolved, without any
dissent, forthwith to issue the injunction prayed for by the
petitioners. No bond is needed.
What with the reservation announced in the resolution, and what
with the motion for reconsideration, this is now written fully to
explain the premises on which our conclusion rested.
Personality of the petitioners. Petitioners are four members of
the House of Representatives from Negros Oriental, Misamis
Oriental, and Bulacan, and the provincial governor of Negros
Oriental. They bring this action in behalf of themselves and of
other residents of their provinces. They allege, and this Court
finds, that their provinces had been discriminated against by
Republic Act 3040, because they were given less representative
districts than the number of their inhabitants required or justified:
Misamis Oriental having 387,839 inhabitants, was given one
district only, whereas Cavite with 379,902 inhabitants, was given
two districts; Negros Oriental and Bulacan with 598,783 and
557,691 respectively, were allotted 2 representative districts
each, whereas Albay with 515,961 was assigned 3 districts.
The authorities hold that "citizens who are deprived of as full and
effective an elective franchise as they are entitled to under the
Constitution by an apportionment act, have a sufficient interest to
proceed in a court to test the statute. (18 Am. Jur. 199.)
Therefore, petitioners as voters and as congressmen and
governor of the aggrieved provinces have personality to sue.
In Stiglitz vs. Schardien (Ky) 40 S.W. (2d) 315, the right of a
citizen to question the validity of a redistricting statute was
upheld. The same right was recognized in Jones vs. Freeman
(Okla.) 146 P. (2d) 564, the court saying that each citizen has the
right to have the State apportioned in accordance with the

Constitution and to be governed by a Legislative fairly

representing the whole body of electorate and elected as required
by the Constitution.
Colegrove vs. Green, 328 .U.S. 549, on which respondents rely,
appear to be inconclusive: three against three. The seventh
justice concurred in the result even supposing the contrary was
justiciable."
The printed-form, three-day requirement. The Constitution
provides that "no bill shall be passed by either House unless it
shall have been printed and copies thereof in its final form
furnished its Members at least three calendar days prior to its
passage, except when the President shall have certified to the
necessity of its immediate enactment."
Petitioners presented certificates of the Secretary of the House of
Representatives to show that no printed copy had been
distributed three days before passage of the bill (on May 10,
1961) and that no certificate of urgency by the President had
been received in the House.
The respondents claim in their defense that a statute may not be
nullified upon evidence of failure to print, because "it is
conclusively presumed that the details of legislative procedure
leading to the enrollment that are prescribed by the Constitution
have been complied with by the Legislature." They further claim
that the certificates of the Secretary of the House are
inadmissible, in view of the conclusive (enrolled-bill) presumption,
which in several instances have been applied by the courts. In
further support of their contention, Sec. 313(2) of Act 190 might
be cited.1
On the other hand, it may be said for the petitioners, that such
printed bill requirement had a fundamental purpose to serve 2 and
was inserted in the Constitution not as a mere procedural step;

and that the enrolled-bill theory, if adopted, would preclude the

courts from enforcing such requirement in proper cases.
We do not deem it necessary to make a definite pronouncement
on the question, because the controversy may be decided upon
the issue of districts-in-proportion-to-inhabitants.
1awphl.nt

Population Census. According to the Constitution, "the

Congress shall by law, make an apportionment (of Members of
the House) within three years after the return of every
enumeration, and not otherwise." It is admitted that the bill, which
later became Republic Act 3040, was based upon a report
submitted to the President by the Director of the Census on
November 23, 1960. It reads:
I have the honor to submit herewith a preliminary count of
the population of the Philippines as a result of the
population enumeration which has just been completed.
This is a report on the total number of inhabitants in this
country and does not include the population
characteristics. It is the result of a hand tally and may be
subject to revision when all the population schedules shall
have been processed mechanically.
The Census of Population is the first of a series of four
censuses which include housing, agriculture and
economics in addition to population. These four censuses
together constitute what is known as the Census of 1960.
Like population, the housing and agricultural censuses
are undergoing processing, while the economic census is
now under preparation.
Until the final report is made, these figures should be
considered as official for all purposes.
Petitioners maintain that the apportionment could not legally rest
on this report since it is merely "preliminary" and "may be subject

to revision." On the other hand, respondents point out that the

above letter says the report should be considered "official for all
purposes." They also point out that the ascertainment of what
constitutes a return of an enumeration is a matter for Congress
action. This issue does not clearly favor petitioners, because
there are authorities sustaining the view that although not final,
and still subject to correction, a census enumeration may be
considered official, in the sense that Governmental action may be
based thereon even in matters of apportionment of legislative
districts (Cahill vs. Leopold [Conn.] 108 Atl. 2d 818). (See also
Elliott vs. State, 1 Pac. 2d 370; Ervin vs. State, 44 S.W. 2d 380;
Herndon vs. Excise Board, 295 Pac. 223; Holcomb vs. Spikes,
232 S.W. 891.)
Apportionment of Members. The Constitution directs that the
one hundred twenty Members of the House of Representatives
"shall be apportioned among the several provinces as nearly as
may be according to the member of their respective inhabitants."
In our resolution on August 23, we held that this provision was
violated by Republic Act 3040 because (a) it gave Cebu seven
members, while Rizal with a bigger number of inhabitants got four
only; (b) it gave Manila four members, while Cotabato with a
bigger population got three only; (c) Pangasinan with less
inhabitants than both Manila and Cotabato got more than both,
five members having been assigned to it; (d) Samar (with
871,857) was allotted four members while Davao with 903,224
got three only; (e) Bulacan with 557,691 got two only, while Albay
with less inhabitants (515,691) got three, and (f) Misamis Oriental
with 387,839 was given one member only, while Cavite with less
inhabitants (379,904) got two. These were not the only instances
of unequal apportionment. We see that Mountain Province has 3
whereas Isabela, Laguna and Cagayan with more inhabitants
have 2 each. And then, Capiz, La Union and Ilocos Norte got 2
each, whereas Sulu that has more inhabitants got 1 only. And
Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less
inhabitants (966,145) was given 5.

Such disproportion of representation has been held sufficient to

avoid apportionment laws enacted in States having Constitutional
provisions similar to ours. For instance, in Massachusetts, the
Constitution required division "into representative district . . .
equally, as nearly as may be, according to the relative number of
legal voters in the several districts." The Supreme Judicial Court
of that state found this provision violated by an allotment that
gave 3 representatives to 7,946 voters and only 2 representatives
to 8,618 voters, and further gave two representatives to 4,854
voters and one representative to 5,598 voters. Justice Rugg said:
It is not an approximation to equality to allot three
representatives to 7,946 voters, and only two
representatives to 8,618 voters, and to allot two
representatives to 4,854 voters, and one representative to
5,596 voters. . . .
Whenever this kind of inequality of apportionment has
been before the courts, it has been held to be contrary to
the Constitution. It has been said to be "arbitrary and
capricious and against the vital principle of
equality." Houghton County v. Blacker, 92 Mich. 638, 647,
653; 16 LRA 432, 52 N.W. 951; Giddings vs. Blacken, 93
Mich. 1, 13, 16 LRA 402, 52 N.W. 944; Barker v. State,
133 Ind. 178, 197, 18 LRA 567, 32 NE 836, 33 NE 119;
Denney v. State, 144 Ind. 503, 535, 31 LRA 726, 42 N. E.
929.
Other cases along the same line upholding the same view are
these:
1. Stiglitz v. Schardien, supra, wherein twelve districts
entitled to but six were given twelve representatives, and
twelve districts given twelve only were actually entitled to
twenty-two.

2. Jones v. Freeman, supra, wherein districts entitled to

only 3 senators were given 7, and districts entitled to 15
were assigned seven only.
It is argued in the motion to reconsider, that since Republic Act
3040 improves existing conditions, this Court could perhaps, in
the exercise of judicial statesmanship, consider the question
involved as purely political and therefore non-justiciable. The
overwhelming weight of authority is that district apportionment
laws are subject to review by the courts.
The constitutionality of a legislative apportionment act is a
judicial question, and not one which the court cannot
consider on the ground that it is a political question.
(Parker v. State ex rel. Powell, 18 L.R.A. 567, 133 Ind.
178, 32 N.E. 836; State ex rel. Morris v. Wrightson, 22
L.R.A. 548, 56 N.J.L. 126, 28 Atl. 56; Harmison v. Ballot
Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E. 394)
It is well settled that the passage of apportionment acts is
not so exclusively within the political power of the
legislature as to preclude a court from inquiring into their
constitutionality when the question is properly brought
before it. (Indiana-Parker v. Powell (1882) 133 Ind. 178,
18 L.R.A. 567, 32 N. E. 836, 33 N. E. 119; Denney v.
State (1896) 144 Ind. 503; 31 L.R.A. 726, 42 N. E. 929;
Marion County v. Jewett (1915) 184 Ind. 63, 110 N. E.
553.) (Kentucky-Ragland v. Anderson (1907) 125 Ky 141,
128 Am. St. Rep. 242, 100 S. W. 865.) (MassachusettsAtty. Gen. v. Suffolk County Apportionment Comrs., etc.)
It may be added in this connection, that the mere impact of the
suit upon the political situation does not render it political instead
of judicial. (Lamb v. Cunningham, 17 L.R.A. 145, 83 Wis. 90.) .
The alleged circumstance that this statute improves the present
set-up constitutes no excuse for approving a transgression of

constitutional limitations, because the end does not justify the

means. Furthermore, there is no reason to doubt that, aware of
the existing inequality of representation, and impelled by its sense
of duty, Congress will opportunely approve remedial legislation in
accord with the precepts of the Constitution.
Needless to say, equality of representation3 in the Legislature
being such an essential feature of republican institutions, and
affecting so many lives, the judiciary may not with a clear
conscience stand by to give free hand to the discretion of the
political departments of the Government. Cases are numerous
wherein courts intervened upon proof of violation of the
constitutional principle of equality of representation.
An injunction to prevent the secretary of state from
issuing notices of election under an unconstitutional
apportionment act gerry-mandering the state is not a
usurpation of authority by the court, on the ground that
the question is a political one, but the constitutionality of
the act is purely a judicial question. (State ex rel. Adams
County v. Cunningham, 15 L.R.A. 561, 81 Wis. 440, 51
N.W. 724.)
The fact that the action may have a political effect, and in
that sense effect a political object, does not make the
questions involved in a suit to declare the
unconstitutionality of an apportionment act political
instead of judicial. (State ex rel. Lamb v. Cunningham, 17
L.R.A. 145, 83 Wis. 90, 53 N.W. 48.)
An unconstitutional apportionment law may be declared
void by the courts, notwithstanding the fact that such
statute is an exercise of political power. (Denney vs. State
ex rel. Basler, 31 L.R.A. 726, 144 Ind. 503, 42 N.E. 929.)
The constitutionality of a statute forming a delegate
district or apportioning delegates for the house of

delegates is a judicial question for the courts, although

the statute is an exercise of political power. (Harmison v.
Ballot Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E.
394.) [3 L.R.A. Digest, p. 2737.)
Conclusion. For all the foregoing, we hereby reiterate our
resolution declaring that Republic Act 3040 infringed the
provisions of the Constitution and is therefore void.
Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes,
Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., is on leave.

JOHN R. OSMEA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF
MAKATI, HON. JEJOMAR BINAY, MUNICIPAL TREASURER,
AND SANGGUNIANG BAYAN OF MAKATI, respondents.

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 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF
MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL
TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.
G.R. No. 118627 March 7, 1995

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 unconstitutional sections 2, 51, and 52 of R.A. No. 7854
on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly
identify the land area or territorial jurisdiction of
Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of
the Constitution, in relation to Sections 7 and 450
of the Local Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or

restart the "three consecutive term" limit for local
elective officials, in violation of Section 8, Article X
and Section 7, Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional
for:
(a) it increased the legislative
district of Makati only by special
law (the Charter in violation of the
constitutional provision requiring a
general reapportionment law to be
passed by Congress within three
(3) years following the return of
every census;
(b) the increase in legislative
district was not expressed in the
title of the bill; and
(c) the addition of another
legislative district in Makati is not
in accord with Section 5 (3), Article
VI of the Constitution for as of the
latest survey (1990 census), the
population of Makati stands at only
450,000.
G.R. No. 118627 was filed by the petitioner John H. Osmea as
senator, taxpayer, and concerned citizen. Petitioner assails
section 52 of R.A. No. 7854 as unconstitutional on the same
grounds as aforestated.

We find no merit in the petitions.

I
Section 2, Article I of R.A. No. 7854 delineated the land areas of
the proposed city of Makati, thus:
Sec. 2. The City of Makati. The Municipality of
Makati shall be converted into a highly urbanized
city to be known as the City of Makati, hereinafter
referred to as the City, which shall comprise the
present territory of the Municipality of Makati in
Metropolitan Manila Area over which it has
jurisdiction bounded on the northeast by Pasig
River and beyond by the City of Mandaluyong and
the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the
southwest by the City of Pasay and the
Municipality of Taguig; and, on the northwest, by
the City of Manila.
The foregoing provision shall be without prejudice
to the resolution by the appropriate agency or
forum of existing boundary disputes or cases
involving questions of territorial jurisdiction
between the City of Makati and the adjoining local
government units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates
sections 7 and 450 of the Local Government Code which require
that the area of a local government unit should be made by metes
and bounds with technical descriptions. 2

The importance of drawing with precise strokes the territorial

boundaries of a local unit of government cannot be
overemphasized. The boundaries must be clear for they define
the limits of the territorial jurisdiction of a local government unit. It
can legitimately exercise powers of government only within the
limits, its acts are ultra vires. Needless to state, any uncertainty in
the boundaries of local government units will sow costly conflicts
in the exercise of governmental powers which ultimately will
prejudice the people's welfare. This is the evil sought to avoided
by the Local Government Code in requiring that the land area of a
local government unit must be spelled out in metes and bounds,
with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how
this evil can be brought about by the description made in section
2 of R.A. No. 7854, Petitioners have not demonstrated that the
delineation of the land area of the proposed City of Makati will
cause confusion as to its boundaries. We note that said
delineation did not change even by an inch the land area
previously covered by Makati as a municipality. Section 2 did not
add, subtract, divide, or multiply the established land area of
Makati. In language that cannot be any clearer, section 2 stated
that, the city's land area "shall comprise the present territory of
the municipality."
The deliberations of Congress will reveal that there is a legitimate
reason why the land area of the proposed City of Makati was not
defined by metes and bounds, with technical descriptions. At the
time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort
Bonifacio was under court litigation. Out of a becoming sense of
respect to co-equal department of government, legislators felt that
the dispute should be left to the courts to decide. They did not

want to foreclose the dispute by making a legislative finding of

fact which could decide the issue. This would have ensued if they
defined the land area of the proposed city by its exact metes and
bounds, with technical descriptions. 3 We take judicial notice of the
fact that Congress has also refrained from using the metes and
bounds description of land areas of other local government units with
unsettled boundary disputes. 4
We hold that the existence of a boundary dispute does not per
se present an insurmountable difficulty which will prevent
Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench,
Congress maintained the existing boundaries of the proposed
City of Makati but as an act of fairness, made them subject to the
ultimate resolution by the courts. Considering these peculiar
circumstances, we are not prepared to hold that section 2 of R.A.
No. 7854 is unconstitutional. We sustain the submission of the
Solicitor General in this regard, viz.:
Going now to Sections 7 and 450 of the Local
Government Code, it is beyond cavil that the
requirement stated therein, viz.: "the territorial
jurisdiction of newly created or converted cities
should be described by meted and bounds, with
technical descriptions" was made in order to
provide a means by which the area of said cities
may be reasonably ascertained. In other words,
the requirement on metes and bounds was meant
merely as tool in the establishment of local
government units. It is not an end in itself. Ergo,
so long as the territorial jurisdiction of a city may
be reasonably ascertained, i.e., by referring to
common boundaries with neighboring

municipalities, as in this case, then, it may be

concluded that the legislative intent behind the
law has been sufficiently served.
Certainly, Congress did not intends that laws
creating new cities must contain therein detailed
technical descriptions similar to those appearing
in Torrens titles, as petitioners seem to imply. To
require such description in the law as a
condition sine qua non for its validity would be to
defeat the very purpose which the Local
Government Code to seeks to serve. The
manifest intent of the Code is to empower local
government units and to give them their rightful
due. It seeks to make local governments more
responsive to the needs of their constituents while
at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the
mere ground that no cadastral type of description
was used in the law would serve the letter but
defeat the spirit of the Code. It then becomes a
case of the master serving the slave, instead of
the other way around. This could not be the
intendment of the law.
Too well settled is the rule that laws must be
enforced when ascertained, although it may not
be consistent with the strict letter of the statute.
Courts will not follow the letter of the statute when
to do so would depart from the true intent of the
legislature or would otherwise yield conclusions
inconsistent with the general purpose of the act.
(Torres v. Limjap, 56 Phil., 141; Taada v. Cuenco,

103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA

1105). Legislation is an active instrument of
government, which, for purposes of interpretation,
means that laws have ends to achieve, and
statutes should be so construed as not to defeat
but to carry out such ends and purposes (Bocolbo
v. Estanislao, 72 SCRA 520). The same rule must
indubitably apply to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of
section 51, Article X of R.A. No. 7854. Section 51 states:
Sec. 51. Officials of the City of Makati. The
represent elective officials of the Municipality of
Makati shall continue as the officials of the City of
Makati and shall exercise their powers and
functions until such time that a new election is
held and the duly elected officials shall have
already qualified and assume their
offices: Provided, The new city will acquire a new
corporate existence. The appointive officials and
employees of the City shall likewise continues
exercising their functions and duties and they
shall be automatically absorbed by the city
government of the City of Makati.
They contend that this section collides with section 8, Article X
and section 7, Article VI of the Constitution which provide:
Sec. 8. The term of office of elective local officials,
except barangay officials, which shall be

determined by law, shall be three years and no

such official shall serve for more than three
consecutive terms. Voluntary renunciation of the
office for any length of time shall not be
considered as an interruption in the continuity of
his service for the full term for which he was
elected.
xxx xxx xxx
Sec. 7. The Members of the House of
Representatives shall be elected for a term of
three years which shall begin, unless otherwise
provided by law, at noon on the thirtieth day of
June next following their election.
No Member of the House of Representatives shall
serve for more than three consecutive terms.
Voluntary renunciation of the office for any length
of time shall not be considered as an interruption
in the continuity of his service for the full term for
which he was elected.
Petitioners stress that under these provisions, elective local
officials, including Members of the House of Representative,
have a term of three (3) years and are prohibited from serving for
more than three (3)consecutive terms. They argue that by
providing that the new city shall acquire a new corporate
existence, section 51 of R.A. No. 7854 restarts the term of the
present municipal elective officials of Makati and disregards the
terms previously served by them. In particular, petitioners point
that section 51 favors the incumbent Makati Mayor, respondent
Jejomar Binay, who has already served for two (2) consecutive

terms. They further argue that should Mayor Binay decide to run
and eventually win as city mayor in the coming elections, he can
still run for the same position in 1998 and seek another three-year
consecutive term since his previous three-year consecutive term
asmunicipal mayor would not be counted. Thus, petitioners
conclude that said section 51 has been conveniently crafted to
suit the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of
section 51. The requirements before a litigant can challenge the
constitutionality of a law are well delineated. They are: 1) there
must be an actual case or controversy; (2) the question of
constitutionality must be raised by the proper party; (3) the
constitutional question must be raised at the earliest possible
opportunity; and (4) the decision on the constitutional question
must be necessary to the determination of the case itself. 5
Petitioners have far from complied with these requirements. The
petition is premised on the occurrence of many contingent
events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections;
and that he would seek re-election for the same position in the
1998 elections. Considering that these contingencies may or may
not happen, petitioners merely pose a hypothetical issue which
has yet to ripen to an actual case or controversy. Petitioners who
are residents of Taguig (except Mariano) are not also the proper
parties to raise this abstract issue. Worse, they hoist this futuristic
issue in a petition for declaratory relief over which this Court has
no jurisdiction.
III

Finally, petitioners in the two (2) cases at bench assail the

constitutionality of section 52, Article X of R.A. No. 7854. Section
52 of the Charter provides:
Sec. 52. Legislative Districts. Upon its
conversion into a highly-urbanized city, Makati
shall thereafter have at least two (2) legislative
districts that shall initially correspond to the two
(2) existing districts created under Section 3(a) of
Republic Act. No. 7166 as implemented by the
Commission on Elections to commence at the
next national elections to be held after the
effectivity of this Act. Henceforth, barangays
Magallanes, Dasmarias and Forbes shall be with
the first district, in lieu of Barangay GuadalupeViejo which shall form part of the second district.
(emphasis supplied)
They contend. that the addition of another legislative district in
Makati is unconstitutional for: (1) reapportionment6 cannot made
by a special law, (2) the addition of a legislative district is not
expressed in the title of the bill 7 and (3) Makati's population, as per
the 1990 census, stands at only four hundred fifty thousand
(450,000).
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.

Petitioners cannot insist that the addition of another legislative

district in Makati is not in accord with section 5(3), Article VI 12 of
the Constitution for as of the latest survey (1990 census), the
population of Makati stands at only four hundred fifty thousand
(450,000). 13 Said section provides, inter alia, that a city with a
population of at least two hundred fifty thousand (250,000) shall
have at least one representative. Even granting that the population of
Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has
met the minimum population requirement of two hundred fifty
thousand (250,000). In fact, section 3 of the Ordinance appended to
the Constitution provides that a city whose population has increased
to more than two hundred fifty thousand (250,000) shall be entitled
to at least one congressional representative. 14
Finally, we do not find merit in petitioners' contention that the
creation of an additional legislative district in Makati should have
been expressly stated in the title of the bill. In the same case
of Tobias v. Abalos, op cit., we reiterated the policy of the Court
favoring a liberal construction of the "one title-one subject" rule so
as not to impede legislation. To be sure, with Constitution does
not command that the title of a law should exactly mirror, fully
index, or completely catalogue all its details. Hence, we ruled that

"it should be sufficient compliance if the title expresses the

general subject and all the provisions are germane to such
general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of
merit No costs.
SO ORDERED.

[G.R. No. 136786. October 6, 2000]

ETERANS FEDERATION PARTY, ALYANSANG

BAYANIHAN NG MGA MAGSASAKA,
MANGGAGAWANG
BUKID
AT
MANGINGISDA, ADHIKAIN AT KILUSAN
NG ORDINARYONG TAO PARA SA LUPA,
PABAHAY AT KAUNLARAN, and LUZON
FARMERS
PARTY,
petitioners,
vs. COMMISSION ON ELECTIONS, PAGASA, SENIOR CITIZENS, AKAP AKSYON,
PINATUBO, NUPA, PRP, AMIN, PAG-ASA,
MAHARLIKA, OCW-UNIFIL, PCCI, AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN,
AFW, ANG LAKAS OCW, WOMENPOWER, INC., FEJODAP, CUP, VETERANS
CARE, 4L, AWATU, PMP, ATUCP, NCWP,
ALU,
BIGAS,
COPRA,
GREEN,
ANAKBAYAN, ARBA, MINFA, AYOS, ALL
COOP,
PDP-LABAN,
KATIPUNAN,
ONEWAY PRINT, AABANTE KA PILIPINAS
-All
Being
Party-List
Parties/Organizations
-and
Hon.
MANUEL B. VILLAR, JR. in His Capacity
as
Speaker
of
the
House
of
Representatives, respondents.

AKBAYAN!
(CITIZENS'
ACTION
PARTY),
ADHIKAIN
AT
KILUSAN
NG
ORDINARYONG TAO PARA SA LUPA,
PABAHAY AT KAUNLARAN (AKO), and
ASSOCIATION OF PHILIPPINE ELECTRIC
COOPERATIVES
(APEC), petitioners,
vs. COMMISSION
ON
ELECTIONS
(COMELEC),
HOUSE
OF
REPRESENTATIVES
represented
by
Speaker Manuel B. Villar, PAG-ASA,
SENIOR CITIZENS, AKAP,
AKSYON,
PINATUBO,
NUPA,
PRP,
AMIN,
MAHARLIKA, OCW, UNIFIL, PCCI, AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN,
AFW, ANG LAKAS OCW, WOMENPOWER
INC., FEJODAP, CUP, VETERANS CARE,
FOUR "L", AWATU, PMP, ATUCP, NCWP,
ALU, BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS, ALL COOP,
PDP-LABAN,
KATIPUNAN,
ONEWAY
PRINT,
AABANTE
KA
PILIPINAS, respondents.

[G.R. No. 136795. October 6, 2000]

ALAGAD
(PARTIDO
NG
MARALITANGLUNGSOD), NATIONAL CONFEDERATION
OF
SMALL
COCONUT
FARMERS'
ORGANIZATIONS (NCSFCO), and LUZON
FARMERS' PARTY (BUTIL), petitioners,
vs. COMMISSION
ON
ELECTIONS,
SENIOR CITIZENS, AKAP,
AKSYON,
PINATUBO, NUPA, PRP, AMIN, PAG-ASA,
MAHARLIKA, OCW, UNIFIL, PCCI, AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN,
AFW, ANG LAKAS OCW, WOMENPOWER
INC., FEJODAP, CUP, VETERANS CARE,
4L, AWATU, PMP, ATUCP, NCWP, ALU,
BIGAS, COPRA, GREEN, ANAK-BAYAN,
ARBA, MINFA, AYOS, ALL COOP, PDPLABAN, KATIPUNAN, ONEWAY PRINT,
and
AABANTE
KA
PILIPINAS, respondents.

shall not exceed twenty percent of the total

membership of the House of Representatives,
including those elected under the party list.

DECISION

Because the Comelec violated these legal

parameters, the assailed Resolutions must be
struck down for having been issued in grave
abuse of discretion. The poll body is mandated to
enforce and administer election-related laws. It
has no power to contravene or amend
them. Neither does it have authority to decide the
wisdom, propriety or rationality of the acts of
Congress.

PANGANIBAN, J.:*
Prologue
To determine the winners in a Philippine-style
party-list election, the Constitution and Republic
Act (RA) No. 7941 mandate at least four inviolable
parameters. These are:
First, the twenty percent allocation - the
combined number of all party-list congressmen

Second, the two percent threshold - only

those parties garnering a minimum of two percent
of the total valid votes cast for the party-list
system are qualified to have a seat in the House
of Representatives;
Third, the three-seat limit - each qualified
party, regardless of the number of votes it
actually obtained, is entitled to a maximum of
three seats; that is, one qualifying and two
additional seats.
Fourth, proportional representation - the
additional seats which a qualified party is entitled
to shall be computed in proportion to their total
number of votes.

Its bounden duty is to craft rules, regulations,

methods and formulas to implement election laws
-- not to reject, ignore, defeat, obstruct or
circumvent them.

In fine, the constitutional introduction of the

party-list system - a normal feature of
parliamentary democracies - into our presidential
form of government, modified by unique Filipino
statutory parameters, presents new paradigms
and novel questions, which demand innovative
legal solutions convertible into mathematical
formulations which are, in turn, anchored on timetested jurisprudence.
The Case
Before the Court are three consolidated
Petitions for Certiorari (with applications for the
issuance of a temporary restraining order or writ
of preliminary injunction) under Rule 65 of the
Rules of Court, assailing (1) the October 15, 1998
Resolution[1] of the Commission on Elections
(Comelec), Second Division, in Election Matter 98065;[2] and (2) the January 7, 1999 Resolution[3] of
the Comelec en banc, affirming the said
disposition. The assailed Resolutions ordered the
proclamation of thirty-eight (38) additional partylist representatives "to complete the full
complement of 52 seats in the House of
Representatives as provided under Section 5,
Article VI of the 1987 Constitution and R.A. 7941.
The Facts and the Antecedents

Our 1987 Constitution introduced a novel

feature
into
our
presidential
system
of
government
-the
party-list
method
of
representation. Under this system, any national,
regional or sectoral party or organization
registered with the Commission on Elections may
participate
in
the
election
of
party-list
representatives who, upon their election and
proclamation, shall sit in the House of
Representatives as regular members.[4] In effect, a
voter is given two (2) votes for the House -- one
for a district congressman and another for a partylist representative.[5]
Specifically, this system of representation is
mandated by Section 5, Article VI of the
Constitution, which provides:
Sec. 5. (1) The House of Representatives shall be
composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall
be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of
their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as
provided by law, shall be elected by a party-list
system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute
twenty per centum of the total number of
representatives including those under the party-

list. For three consecutive terms after the

ratification of this Constitution, one half of the
seats allocated to party-list representatives shall
be filled, as provided by law, by selection or
election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth,
and such other sectors as may be provided by
law, except the religious sector.
Complying with its
constitutional duty
to provide by law the selection or election of
party-list representatives, Congress enacted RA
7941 on March 3, 1995. Under this statutes policy
declaration, the State shall "promote proportional
representation
in
the
election
of
representatives to the House of Representatives
through a party-list system of registered national,
regional and sectoral parties or organizations or
coalitions thereof, which will enable Filipino
citizens
belonging
to
marginalized
and
underrepresented sectors, organizations and
parties, and who lack well-defined political
constituencies but who could contribute to the
formulation and enactment of appropriate
legislation that will benefit the nation as a whole,
to
become
members
of
the House of
Representatives.Towards this end, the State shall
develop and guarantee a full, free and open party
system in order to attain the broadest possible
representation of party, sectoral or group interests
in the House of Representatives by enhancing
their chances to compete for and win seats in the

legislature, and shall provide the simplest scheme

possible. (italics ours.)
The requirements for entitlement to a partylist seat in the House are prescribed by this law
(RA 7941) in this wise:
Sec. 11. Number of Party-List Representatives.
-- The party-list representatives shall constitute
twenty per centum (20%) of the total number of
the members of the House of Representatives
including those under the party-list.
For purposes of the May 1998 elections, the first
five (5) major political parties on the basis of party
representation in the House of Representatives at
the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list
system.
In determining the allocation of seats for the
second vote, the following procedure shall be
observed:
(a) The parties, organizations, and coalitions shall
be ranked from the highest to the lowest based on
the number of votes they garnered during the
elections.
(b) The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be
entitled to one seat each; Provided, That those

garnering more than two percent (2%) of the

votes shall be entitled to additional seats in
proportion to their total number of votes;
Provided, finally, That each party, organization, or
coalition shall be entitled to not more than three
(3) seats.
Pursuant to Section 18 of RA 7941, the
Comelec en banc promulgated Resolution No.
2847, prescribing the rules and regulations
governing the election of party-list representatives
through the party-list system.
Election of the Fourteen Party-List
Representatives
On May 11, 1998, the first election for partylist representation was held simultaneously with
the national elections. A total of one hundred
twenty-three (123) parties, organizations and
coalitions participated. On June 26, 1998, the
Comelec en banc proclaimed thirteen (13) partylist representatives from twelve (12) parties and
organizations, which had obtained at least two
percent of the total number of votes cast for the
party-list
system. Two
of
the
proclaimed
representatives belonged to Petitioner APEC,
which obtained 5.5 percent of the votes. The
proclaimed winners and the votes cast in their
favor were as follows:[6]

Party/Organization/ Number of Percentage

of Nominees
Coalition Votes Obtained Total Votes
1. APEC 503,487 5.5% Rene M. Silos
Melvyn D. Eballe
2. ABA 321,646 3.51% Leonardo Q. Montemayor
3. ALAGAD 312,500 3.41% Diogenes S. Osabel
4. VETERANS 304,802 3.33% Eduardo P. Pilapil
FEDERATION
5. PROMDI 255,184 2.79% Joy A.G. Young
6. AKO 239,042 2.61% Ariel A. Zartiga
7. NCSCFO 238,303 2.60% Gorgonio P. Unde
8. ABANSE! PINAY 235,548 2.57% Patricia M.
Sarenas
9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales
10. BUTIL 215,643 2.36% Benjamin A. Cruz
11. SANLAKAS 194,617 2.13% Renato B. Magtubo
12. COOP-NATCCO 189,802 2.07% Cresente C.
Paez
After passing upon the results of the special
elections held on July 4, 18, and 25, 1998, the
Comelec en banc further determined that
COCOFED (Philippine Coconut Planters Federation,
Inc.) was entitled to one party-list seat for having
garnered 186,388 votes, which were equivalent to
2.04 percent of the total votes cast for the partylist system. Thus, its first nominee, Emerito S.
Calderon, was proclaimed on September 8, 1998
as the 14th party-list representative.[7]
On July 6, 1998, PAG-ASA (Peoples Progressive
Alliance for Peace and Good Government Towards
Alleviation of Poverty and Social Advancement)

filed with the Comelec a "Petition to Proclaim [the]

Full Number of Party-List Representatives provided
by the Constitution." It alleged that the filling up
of the twenty percent membership of party-list
representatives in the House of Representatives,
as provided under the Constitution, was
mandatory. It further claimed that the literal
application of the two percent vote requirement
and the three-seat limit under RA 7941 would
defeat this constitutional provision, for only 25
nominees would be declared winners, short of the
52 party-list representatives who should actually
sit in the House.
Thereafter,
nine
other
party-list
organizations[8] filed their respective Motions for
Intervention, seeking the same relief as that
sought by PAG-ASA on substantially the same
grounds. Likewise, PAG-ASAs Petition was joined
by other party-list organizations in a Manifestation
they
filed
on
August
28,
1998. These
organizations were COCOFED, Senior Citizens,
AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI,
AMMA-KATIPUNAN,
OCW-UNIFIL,
KAMPIL,
MAHARLIKA, AFW, Women Power, Inc., Ang Lakas
OCW, FEJODAP, CUP, Veterans Care, Bantay
Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS.
On October 15, 1998, the Comelec Second
Division promulgated the present assailed
Resolution granting PAG-ASA's Petition. It also
ordered
the
proclamation
of
herein
38
respondents who, in addition to the 14 already
sitting,
would
thus
total
52
party-list

representatives. It held that "at all times, the total

number of congressional[9] seats must be filled up
by eighty (80%) percent district representatives
and
twenty
(20%)
percent
party-list
representatives." In allocating the 52 seats, it
disregarded the two percent-vote requirement
prescribed under Section 11 (b) of RA
7941. Instead, it identified three "elements of the
party-list system," which should supposedly
determine "how the 52 seats should be filled
up." First, "the system was conceived to enable
the marginalized sectors of the Philippine society
to
be
represented
in
the
House
of
Representatives." Second, "the system should
represent the broadest sectors of the Philippine
society." Third, "it should encourage [the]multiparty system.
(Boldface
in
the
original.) Considering
these
elements,
but
ignoring the two percent threshold requirement of
RA
7941, it concluded that "the partylist groups ranked Nos. 1 to 51 x x x should have
at least one representative. It thus disposed as
follows:
"WHEREFORE, by virtue of the powers vested in it
by the Constitution, the Omnibus Election Code
(B.P. 881), Republic Act No. 7941 and other
election laws, the Commission (Second Division)
hereby resolves to GRANT the instant petition and
motions for intervention, to include those similarly
situated.

ACCORDINGLY, the nominees from the party-list

hereinbelow enumerated based on the list of
names submitted by their respective parties,
organizations and coalitions are PROCLAIMED as
party-list representatives, to wit:

19. CUP
20. VETERANS CARE
21. 4L
22. AWATU

1. SENIOR CITIZENS

23. PMP

2. AKAP

24. ATUCP

3. AKSYON

25. NCWP

4. PINATUBO

26. ALU

5. NUPA

27. BIGAS

6. PRP

28. COPRA

7. AMIN

29. GREEN

8. PAG-ASA

30. ANAKBAYAN

9. MAHARLIKA

31. ARBA

10. OCW-UNIFIL

32. MINFA

11. FCL

33. AYOS

12. AMMA-KATIPUNAN

34. ALL COOP

13. KAMPIL

35. PDP-LABAN

14. BANTAY BAYAN

36. KATIPUNAN

15. AFW

37. ONEWAY PRINT

16. ANG LAKAS OCW

38. AABANTE KA PILIPINAS

17. WOMENPOWER, INC.

18. FEJODAP

to complete the full complement of 52 seats in the

House of Representatives as provided in Section

5, Article VI of the 1987 Constitution and R.A.

7941.
The foregoing disposition sums up a glaring bit
of inconsistency and flip-flopping. In its Resolution
No. 2847 dated June 25, 1996, the Comelec en
banc had unanimously promulgated a set of Rules
and Regulations Governing the Election of x x x
Party-List Representatives Through the Party-List
System. Under these Rules and Regulations, one
additional seat shall be given for every two
percent of the vote, a formula the Comelec
illustrated in its Annex A. It apparently relied on
this method when it proclaimed the 14 incumbent
party-list solons (two for APEC and one each for
the 12 other qualified parties). However, for
inexplicable
reasons,
it
abandoned
said
unanimous Resolution and proclaimed, based on
its three elements, the Group of 38 private
respondents.[10]
The twelve (12) parties and organizations,
which had earlier been proclaimed winners on the
basis of having obtained at least two percent of
the votes cast for the party-list system, objected
to the proclamation of the 38 parties and filed
separate
Motions
for
Reconsideration. They
contended that (1) under Section 11 (b) of RA
7941, only parties, organizations or coalitions
garnering at least two percent of the votes for the
party-list system were entitled to seats in the
House of Representatives; and (2) additional
seats, not exceeding two for each, should be

allocated to those which had garnered the two

percent threshold in proportion to the number of
votes cast for the winning parties, as provided by
said Section 11.
Ruling of the Comelec En Banc
Noting that all the parties -- movants and
oppositors alike - had agreed that the twenty
percent membership of party-list representatives
in the House "should be filled up, the Comelec en
banc resolved only the issue concerning the
apportionment or allocation of the remaining
seats. In other words, the issue was: Should the
remaining 38 unfilled seats allocated to party-list
solons be given (1) to the thirteen qualified
parties that had each garnered at least two
percent of the total votes, or (2) to the Group of
38 - herein private respondents - even if they had
not passed the two percent threshold?
The poll body held that to allocate the
remaining seats only to those who had hurdled
the two percent vote requirement "will mean the
concentration of representation of party, sectoral
or group interests in the House of Representatives
to thirteen organizations representing two political
parties, three coalitions and four sectors: urban
poor, veterans, women and peasantry x x x. Such
strict application of the 2% 'threshold' does not
serve the essence and object of the Constitution
and the legislature -- to develop and guarantee a

full, free and open party system in order to attain

the broadest possible representation of party,
sectoral or group interests in the House of
Representatives x x x. Additionally, it "will also
prevent this Commission from complying with the
constitutional and statutory decrees for party-list
representatives to compose 20% of the House of
Representatives.

38 parties, organizations and coalitions that had

been declared by the poll body as likewise entitled
to
party-list
seats
in
the
House
of
Representatives. Collectively, petitioners sought
the proclamation of additional representatives
from each of their parties and organizations, all of
which had obtained at least two percent of the
total votes cast for the party-list system.

Thus, in its Resolution dated January 7, 1999,

the Comelec en banc, by a razor-thin majority -with three commissioners concurring[11] and two
members[12] dissenting -- affirmed the Resolution
of its Second Division. It, however, held in
abeyance the proclamation of the 51st party
(AABANTE KA PILIPINAS), "pending the resolution
of petitions for correction of manifest errors.

On January 12, 1999, this Court issued a

Status Quo Order directing the Comelec to CEASE
and DESIST from constituting itself as a National
Board of Canvassers on 13 January 1999 or on any
other date and proclaiming as winners the
nominees of the parties, organizations and
coalitions enumerated in the dispositive portions
of its 15 October 1998 Resolution or its 7 January
1999 Resolution, until further orders from this
Court.

Without
expressly
declaring
as
unconstitutional or void the two percent vote
requirement
imposed
by
RA
7941,
the
Commission blithely rejected and circumvented its
application, holding that there were more
important considerations than this statutory
threshold.
Consequently, several petitions for certiorari,
prohibition and mandamus, with prayers for the
issuance of temporary restraining orders or writs
of preliminary injunction, were filed before this
Court by the parties and organizations that had
obtained at least two per cent of the total votes
cast for the party-list system. [13] In the suits, made
respondents together with the Comelec were the

On July 1, 1999, oral arguments were heard

from the parties. Atty. Jeremias U. Montemayor
appeared for petitioners in GR No. 136781; Atty.
Gregorio A. Andolana, for petitioners in GR No.
136786; Atty. Rodante D. Marcoleta for petitioners
in GR No. 136795; Attys. Ricardo Blancaflor and
Pete Quirino Quadra, for all the private
respondents; Atty. Porfirio V. Sison for Intervenor
NACUSIP; and Atty. Jose P. Balbuena for
Respondent Comelec. Upon invitation of the Court,
retired Comelec Commissioner Regalado E.
Maambong acted as amicus curiae. Solicitor
General Ricardo P. Galvez appeared, not for any
party but also as a friend of the Court.

Thereafter,
the
parties
and
the amici
curiae were required to submit their respective
Memoranda in amplification of their verbal
arguments.[14]

The Petitions are partly meritorious. The Court

agrees with petitioners that the assailed
Resolutions should be nullified, but disagrees that
they should all be granted additional seats.

The Issues

First Issue: Whether the Twenty Percent

Constitutional Allocation Is Mandatory

The Court believes, and so holds, that the

main question of how to determine the winners of
the subject party-list election can be fully settled
by addressing the following issues:
1. Is the twenty percent allocation for party-list
representatives mentioned in Section 5 (2), Article
VI of the Constitution, mandatory or is it merely a
ceiling? In other words, should the twenty percent
allocation for party-list solons be filled up
completely and all the time?
2. Are the two percent threshold requirement and
the three-seat limit provided in Section 11 (b) of
RA 7941 constitutional?
3. If the answer to Issue 2 is in the affirmative,
how should the additional seats of a qualified
party be determined?
The Courts Ruling

The pertinent provision[15] of the Constitution

on
the
composition
of
the
House
of
Representatives reads as follows:
Sec. 5. (1) The House of Representatives shall be
composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall
be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of
their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as
provided by law, shall be elected by a party-list
system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute
twenty per centum of the total number of
representatives including those under the partylist. For three consecutive terms after the
ratification of this Constitution, one half of the
seats allocated to party-list representatives shall
be filled, as provided by law, by selection or

election from the labor, peasant, urban poor,

indigenous cultural communities, women, youth,
and such other sectors as may be provided by
law, except the religious sector.

The foregoing computation of seat allocation is

easy enough to comprehend. The problematic
question, however, is this: Does the Constitution
require all such allocated seats to be filled up all
the time and under all circumstances? Our short
answer is No.

Determination of the Total Number of PartyList Lawmakers

Twenty Percent Allocation a Mere Ceiling
Clearly, the Constitution makes the number of
district representatives the determinant in arriving
at the number of seats allocated for party-list
lawmakers, who shall comprise "twenty per
centum of the total number of representatives
including those under the party-list." We thus
translate this legal provision into a mathematical
formula, as follows:
No. of district representatives
---------------------------------- x .20 = No. of party-list
.80 representatives
This formulation[16] means that any increase in
the number of district representatives, as may be
provided by law, will necessarily result in a
corresponding increase in the number of party-list
seats. To illustrate, considering that there were
208 district representatives to be elected during
the 1998 national elections, the number of partylist seats would be 52, computed as follows:
208
-------- x .20 = 52
.80

The Constitution simply states that "[t]he

party-list representatives shall constitute twenty
per centum of the total number of representatives
including those under the party-list.
According to petitioners, this percentage is a
ceiling; the mechanics by which it is to be filled up
has been left to Congress. In the exercise of its
prerogative, the legislature enacted RA 7941, by
which it prescribed that a party, organization or
coalition participating in the party-list election
must obtain at least two percent of the total votes
cast for the system in order to qualify for a seat in
the House of Representatives.
Petitioners
further
argue
that
the
constitutional provision must be construed
together with this legislative requirement. If there
is no sufficient number of participating parties,
organizations or coalitions which could hurdle the
two percent vote threshold and thereby fill up the
twenty percent party-list allocation in the House,
then naturally such allocation cannot be filled up

completely. The Comelec cannot be faulted for the

"incompleteness," for ultimately the voters
themselves are the ones who, in the exercise of
their right of suffrage, determine who and how
many should represent them.
On the other hand, Public Respondent
Comelec, together with the respondent parties,
avers that the twenty percent allocation for partylist lawmakers is mandatory, and that the two
percent vote requirement in RA 7941 is
unconstitutional, because its strict application
would make it mathematically impossible to fill up
the House party-list complement.
We rule that a simple reading of Section 5,
Article VI of the Constitution, easily conveys the
equally simple message that Congress was vested
with the broad power to define and prescribe the
mechanics
of
the
party-list
system
of
representation. The Constitution explicitly sets
down only the percentage of the total
membership in the House of Representatives
reserved for party-list representatives.
In the exercise of its constitutional prerogative,
Congress enacted RA 7941. As said earlier,
Congress declared therein a policy to promote
"proportional representation" in the election of
party-list representatives in order to enable
Filipinos belonging to the marginalized and
underrepresented sectors to contribute legislation
that would benefit them. It however deemed it
necessary to require parties, organizations and

coalitions participating in the system to obtain at

least two percent of the total votes cast for the
party-list system in order to be entitled to a partylist seat. Those garnering more than this
percentage could have "additional seats in
proportion to their total number of votes.
Furthermore, no winning party, organization or
coalition can have more than three seats in the
House of Representatives. Thus the relevant
portion of Section 11(b) of the law provides:
(b) The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be
entitled to one seat each; Provided, That those
garnering more than two percent (2%) of the
votes shall be entitled to additional seats in
proportion to their total number of votes;
Provided, finally, That each party, organization, or
coalition shall be entitled to not more than three
(3) seats.
Considering
the
foregoing
statutory
requirements, it will be shown presently that
Section 5 (2), Article VI of the Constitution is not
mandatory. It merely provides a ceiling for partylist seats in Congress.
On the contention that a strict application of
the two percent threshold may result in a
mathematical impossibility, suffice it to say that
the prerogative to determine whether to adjust or
change this percentage requirement rests in

Congress.[17] Our task now, as should have been

the Comelecs, is not to find fault in the wisdom of
the law through highly unlikely scenarios of
clinical extremes, but to craft an innovative
mathematical formula that can, as far as
practicable, implement it within the context of the
actual election process.
Indeed, the function of the Supreme Court, as
well as of all judicial and quasi-judicial agencies, is
to apply the law as we find it, not to reinvent or
second-guess it. Unless declared unconstitutional,
ineffective, insufficient or otherwise void by the
proper tribunal, a statute remains a valid
command of sovereignty that must be respected
and obeyed at all times. This is the essence of the
rule of law.
Second Issue: The Statutory Requirement
and Limitation
The Two Percent Threshold
In imposing a two percent threshold, Congress
wanted to ensure that only those parties,
organizations and coalitions having a sufficient
number
of
constituents
deserving
of
representation are actually represented in
Congress. This intent can be gleaned from the
deliberations on the proposed bill. We quote below
a pertinent portion of the Senate discussion:

SENATOR GONZALES: For purposes of continuity, I

would want to follow up a point that was raised
by, I think, Senator Osmea when he said that a
political party must have obtained at least a
minimum percentage to be provided in this law in
order to qualify for a seat under the party-list
system.
They do that in many other countries. A party
must obtain at least 2 percent of the votes cast, 5
percent or 10 percent of the votes
cast. Otherwise, as I have said, this will actually
proliferate political party groups and those who
have not really been given by the people
sufficient basis for them to represent their
constituents and, in turn, they will be able to get
to the Parliament through the backdoor under the
name of the party-list system, Mr. President."[18]
A similar intent is clear from the statements of
the bill sponsor in the House of Representatives,
as the following shows:
MR. ESPINOSA. There is a mathematical formula
which this computation is based at, arriving at a
five percent ratio which would distribute equitably
the number of seats among the different
sectors. There is a mathematical formula which is,
I think, patterned after that of the party list of the
other parliaments or congresses, more particularly
the Bundestag of Germany.[19]

Moreover, even the framers of our Constitution

had in mind a minimum-vote requirement, the
specification of which they left to Congress to
properly determine. Constitutional Commissioner
Christian S. Monsod explained:
MR. MONSOD. x x x We are amenable to
modifications in the minimum percentage of
votes. Our proposal is that anybody who has twoand-a-half percent of the votes gets a seat. There
are about 20 million who cast their votes in the
last elections. Two-and-a-half percent would mean
500,000 votes. Anybody who has a constituency
of 500,000 votes nationwide deserves a seat in
the Assembly. If we bring that down to two
percent, we are talking about 400,000 votes. The
average vote per family is three. So, here we are
talking about 134,000 families. We believe that
there are many sectors who will be able to get
seats in the Assembly because many of them
have memberships of over 10,000. In effect, that
is the operational implication of our
proposal. What we are trying to avoid is this
selection of sectors, the reserve seat system. We
believe that it is our job to open up the system
and that we should not have within that system a
reserve seat. We think that people should
organize, should work hard, and should earn their
seats within that system.[20]
The two percent threshold is consistent not
only with the intent of the framers of the
Constitution and the law, but with the very

essence of "representation." Under a republican or

representative state, all government authority
emanates from the people, but is exercised by
representatives chosen by them.[21] But to have
meaningful representation, the elected persons
must have the mandate of a sufficient number of
people. Otherwise, in a legislature that features
the party-list system, the result might be the
proliferation of small groups which are incapable
of contributing significant legislation, and which
might even pose a threat to the stability of
Congress. Thus, even legislative districts are
apportioned according to "the number of their
respective inhabitants, and on the basis of a
uniform and progressive ratio"[22] to ensure
meaningful local representation.
All in all, we hold that the statutory provision
on this two percent requirement is precise and
crystalline. When the law is clear, the function of
courts is simple application, not interpretation or
circumvention.[23]
The Three-Seat-Per-Party Limit
An important consideration in adopting the
party-list system is to promote and encourage a
multiparty system of representation. Again, we
quote Commissioner Monsod:
MR. MONSOD. Madam President, I just want to say
that we suggested or proposed the party list

system because we wanted to open up the

political system to a pluralistic society through a
multiparty system. But we also wanted to avoid
the problems of mechanics and operation in the
implementation of a concept that has very serious
shortcomings of classification and of double or
triple votes. We are for opening up the system,
and we would like very much for the sectors to be
there. That is why one of the ways to do that is to
put a ceiling on the number of representatives
from any single party that can sit within the 50
allocated under the party list system. This way,
we will open it up and enable sectoral groups, or
maybe regional groups, to earn their seats among
the fifty. x x x.[24]
Consistent
with
the
Constitutional
Commission's pronouncements, Congress set the
seat-limit to three (3) for each qualified party,
organization
or
coalition. "Qualified"
means
having
hurdled
the
two
percent
vote
threshold. Such three-seat limit ensures the entry
of various interest-representations into the
legislature; thus, no single group, no matter how
large its membership, would dominate the partylist seats, if not the entire House.
We shall not belabor this point, because the
validity of the three-seat limit is not seriously
challenged in these consolidated cases.

Third Issue: Method of Allocating Additional

Seats
Having determined that the twenty percent
seat allocation is merely a ceiling, and having
upheld the constitutionality of the two percent
vote threshold and the three-seat limit imposed
under RA 7941, we now proceed to the method of
determining how many party-list seats the
qualified parties, organizations and coalitions are
entitled to. The very first step - there is no dispute
on this - is to rank all the participating parties,
organizations and coalitions (hereafter collectively
referred to as "parties") according to the votes
they each obtained. The percentage of their
respective votes as against the total number of
votes cast for the party-list system is then
determined. All those that garnered at least two
percent of the total votes cast have an assured or
guaranteed
seat
in
the
House
of
Representatives. Thereafter,
"those
garnering
more than two percent of the votes shall be
entitled to additional seats in proportion to their
total number of votes." The problem is how to
distribute
additional
seats
"proportionally,"
bearing in mind the three-seat limit further
imposed by the law.
One Additional Seat Per Two Percent
Increment

One proposed formula is to allocate one

additional seat for every additional proportion of
the votes obtained equivalent to the two percent
vote requirement for the first seat. [25] Translated in
figures, a party that wins at least six percent of
the total votes cast will be entitled to three seats;
another party that gets four percent will be
entitled to two seats; and one that gets two
percent will be entitled to one seat only. This
proposal has the advantage of simplicity and ease
of comprehension. Problems arise, however, when
the parties get very lop-sided votes -- for
example, when Party A receives 20 percent of the
total votes cast; Party B, 10 percent; and Party C,
6 percent. Under the method just described, Party
A would be entitled to 10 seats; Party B, to 5 seats
and Party C, to 3 seats. Considering the three-seat
limit imposed by law, all the parties will each
uniformly have three seats only. We would then
have the spectacle of a party garnering two or
more times the number of votes obtained by
another, yet getting the same number of seats as
the other one with the much lesser votes. In
effect,
proportional representation will be
contravened and the law rendered nugatory by
this
suggested solution. Hence,
the Court
discarded it.
The Niemeyer Formula

Another suggestion that the Court considered

was the Niemeyer formula, which was developed
by a German mathematician and adopted by
Germany as its method of distributing party-list
seats in the Bundestag. Under this formula, the
number of additional seats to which a qualified
party would be entitled is determined by
multiplying the remaining number of seats to be
allocated by the total number of votes obtained
by that party and dividing the product by the total
number of votes garnered by all the qualified
parties. The integer portion of the resulting
product will be the number of additional seats that
the party concerned is entitled to. Thus:
No. of remaining seats
to be allocated No. of additional
--------------------------- x No. of votes of = seats of
party
Total no. of votes of party concerned concerned
qualified parties (Integer.decimal)
The next step is to distribute the extra seats
left among the qualified parties in the descending
order of the decimal portions of the resulting
products. Based on the 1998 election results, the
distribution of party-list seats under the Niemeyer
method would be as follows:
Party Number of Guaranteed Additional Extra Total
Votes Seats Seats Seats
1. APEC 503,487 1 5.73 1 7
2. ABA 321,646 1 3.66 1 5
3. ALAGAD 312,500 1 3.55 4

4. VETERANS 304,802 1 3.47 4

FEDERATION
5. PROMDI 255,184 1 2.90 1 4
6. AKO 239,042 1 2.72 1 4
7. NCSCFO 238,303 1 2.71 1 4
8. ABANSE! PINAY 235,548 1 2.68 1 4
9. AKBAYAN 232,376 1 2.64 1 4
10. BUTIL 215,643 1 2.45 3
11. SANLAKAS 194,617 1 2.21 3
12. COOP-NATCCO 189,802 1 2.16 3
13. COCOFED 186,388 1 2.12 3
Total 3,429,338 13 32 7 52
However, since Section 11 of RA 7941 sets a
limit of three (3) seats for each party, those
obtaining more than the limit will have to give up
their excess seats. Under our present set of facts,
the thirteen qualified parties will each be entitled
to three seats, resulting in an overall total of
39. Note that like the previous proposal, the
Niemeyer formula would violate the principle of
"proportional representation," a basic tenet of our
party-list system.
The Niemeyer formula, while no doubt suitable
for Germany, finds no application in the Philippine
setting, because of our three-seat limit and the
non-mandatory character of the twenty percent
allocation. True, both our Congress and the
Bundestag have threshold requirements -- two
percent for us and five for them. There are
marked differences between the two models,
however. As ably pointed out by private
respondents,[26] one half of the German Parliament

is filled up by party-list members. More important,

there are no seat limitations, because German law
discourages the proliferation of small parties. In
contrast, RA 7941, as already mentioned, imposes
a three-seat limit to encourage the promotion of
the multiparty system. This major statutory
difference
makes
the
Niemeyer
formula
completely inapplicable to the Philippines.
Just as one cannot grow Washington apples in
the Philippines or Guimaras mangoes in the Arctic
because
of
fundamental
environmental
differences, neither can the Niemeyer formula be
transplanted in toto here because of essential
variances between the two party-list models.
The Legal and Logical Formula for the
Philippines
It is now obvious that the Philippine style
party-list system is a unique paradigm which
demands an equally unique formula. In crafting a
legally defensible and logical solution to
determine the number of additional seats that
a qualified party is entitled to, we need to review
the parameters of the Filipino party-list system.
As earlier mentioned in the Prologue, they are
as follows:
First, the twenty percent allocation - the
combined number of all party-list congressmen
shall not exceed twenty percent of the total

membership of the House of Representatives,

including those elected under the party list.
Second, the two percent threshold - only
those parties garnering a minimum of two percent
of the total valid votes cast for the party-list
system are qualified to have a seat in the House
of Representatives;
Third, the three-seat limit - each qualified
party, regardless of the number of votes it
actually obtained, is entitled to a maximum of
three seats; that is, one qualifying and two
additional seats.
Fourth, proportional representation - the
additional seats which a qualified party is entitled
to shall be computed in proportion to their total
number of votes.
The problem, as already stated, is to find a
way to translate proportional representation into a
mathematical formula that will not contravene,
circumvent or amend the above-mentioned
parameters.
After careful deliberation, we now explain such
formula, step by step.
Step One. There is no dispute among the
petitioners,
the
public
and
the
private
respondents, as well as the members of this
Court, that the initial step is to rank all the
participating parties, organizations and coalitions
from the highest to the lowest based on the
number of votes they each received. Then the

ratio for each party is computed by dividing its

votes by the total votes cast for all the parties
participating in the system. All parties with at
least two percent of the total votes are
guaranteed one seat each. Only these parties
shall
be
considered
in
the
computation
of additionalseats. The party receiving the highest
number of votes shall thenceforth be referred to
as the first party.
Step Two. The next step is to determine the
number of seats the first party is entitled to, in
order to be able to compute that for the other
parties. Since the distribution is based on
proportional representation, the number of seats
to be allotted to the other parties cannot possibly
exceed that to which the first party is entitled by
virtue of its obtaining the most number of votes.
For example, the first party received
1,000,000 votes and is determined to be entitled
to two additional seats. Another qualified party
which received 500,000 votes cannot be entitled
to the same number of seats, since it garnered
only fifty percent of the votes won by the first
party. Depending on the proportion of its votes
relative to that of the first party whose number of
seats has already been predetermined, the
second party should be given less than that to
which the first one is entitled.
The other qualified parties will always be
allotted less additional seats than the first party
for two reasons: (1) the ratio between said parties

and the first party will always be less than 1:1,

and (2) the formula does not admit of
mathematical rounding off, because there is no
such thing as a fraction of a seat. Verily, an
arbitrary rounding off could result in a violation of
the twenty percent allocation. An academic
mathematical demonstration of such incipient
violation is not necessary because the present set
of facts, given the number of qualified parties and
the
voting
percentages
obtained,
will
definitely not end up in such constitutional
contravention.
The Court has previously ruled in Guingona Jr.
v. Gonzales[27] that a fractional membership cannot
be converted into a whole membership of one
when it would, in effect, deprive another party's
fractional membership. It would be a violation of
the constitutional mandate of proportional
representation. We said further that "no party can
claim more than what it is entitled to x x x.
In any case, the decision on whether to round
off the fractions is better left to the
legislature. Since Congress did not provide for it in
the present law, neither will this Court. The
Supreme Court does not make the law; it merely
applies it to a given set of facts.
Formula for Determining Additional Seats
for the First Party

Now, how do we determine the number of

seats the first party is entitled to? The only basis
given by the law is that a party receiving at least
two percent of the total votes shall be entitled to
one seat. Proportionally, if the first party were to
receive twice the number of votes of the second
party, it should be entitled to twice the latter's
number of seats and so on. The formula,
therefore, for computing the number of seats to
which the first party is entitled is as follows:
Number of votes
of first party Proportion of votes of
-------------------- = first party relative to
Total votes for total votes for party-list system
party-list system
If the proportion of votes received by the first
party without rounding it off is equal to at least six
percent of the total valid votes cast for all the
party list groups, then the first party shall be
entitled to two additional seats or a total of three
seats overall. If the proportion of votes without a
rounding off is equal to or greater than four
percent, but less than six percent, then the first
party shall have one additional or a total of two
seats. And if the proportion is less than four
percent, then the first party shall not be entitled
to any additional seat.
We adopted this six percent bench mark,
because the first party is not always entitled to
the
maximum
number
of
additional
seats. Likewise, it would prevent the allotment of

more than the total number of available seats,

such as in an extreme case wherein 18 or more
parties tie for the highest rank and are thus
entitled to three seats each. In such scenario, the
number of seats to which all the parties are
entitled may exceed the maximum number of
party-list seats reserved in the House of
Representatives.
Applying the above formula, APEC, which
received 5.5% of the total votes cast, is entitled to
one additional seat or a total of two seats.
Note that the above formula will be applicable
only in determining the number of additional seats
the first party is entitled to. It cannot be used to
determine the number of additional seats of the
other qualified parties. As explained earlier, the
use of the same formula for all would contravene
the proportional representation parameter. For
example, a second party obtains six percent of the
total number of votes cast. According to the above
formula, the said party would be entitled to two
additional seats or a total of three seats
overall. However, if the first party received a
significantly higher amount of votes -- say, twenty
percent -- to grant it the same number of seats as
the second party would violate the statutory
mandate of proportional representation, since a
party getting only six percent of the votes will
have an equal number of representatives as the
one obtaining twenty percent. The proper
solution, therefore, is to grant the first party a
total of three seats; and the party receiving six

percent, additional seats in proportion to those of

the first party.
Formula for Additional Seats of Other
Qualified Parties
Step Three The next step is to solve for the
number of additional seats that the other qualified
parties are entitled to, based on proportional
representation. The formula is encompassed by
the following complex fraction:
No. of votes of
concerned party
-----------------Total no. of votes
Additional seats for party-list system No. of
additional
for concerned = ----------------------- x seats allocated
to
party No. of votes of the first party
first party
-----------------Total no. of votes
for party list system
In simplified form, it is written as follows:
No. of votes of
Additional seats concerned party No. of additional
for concerned = ------------------ x seats allocated to
party No. of votes of the first party
first party

Thus, in the case of ABA, the additional

number of seats it would be entitled to is
computed as follows:
No. of votes of
Additional seats ABA No. of additional
for concerned = -------------------- x seats allocated
to
party (ABA) No. of votes of the first party
first party (APEC)
Substituting actual values would result in the
following equation:
Additional seats 321,646
for concerned = ----------- x 1 = .64 or 0 additional
seat, since
party (ABA) 503,487 rounding off is not to be
applied
Applying the above formula, we find the
outcome of the 1998 party-list election to be as
follows:
Organization Votes %age of Initial
No. Additional Total
Garnered Total Votes of Seats Seats
1. APEC 503,487 5.50% 1 1 2
2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 =
0.64 1
3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 *
1 = 0.62 1
4. VETERANS 304,802 3.33% 1 304,802 / 503,487
* 1 = 0.61 1
FEDERATION

5. PROMDI 255,184 2.79% 1 255,184 / 503,487 *

1 = 0.51 1
6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 =
0.47 1
7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1
= 0.47 1
8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 *
1 = 0.47 1
PINAY
9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487
* 1 = 0.46 1
10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1
= 0.43 1
11. SANLAKAS 194,617 2.13% 1 194,617 /
503,487 * 1 = 0.39 1
12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1
= 0.38 1
NATCCO
13. COCOFED 186,388 2.04% 1 186,388 / 503,487
* 1 = 0.37 1
Incidentally, if the first party is not entitled to
any additional seat, then the ratio of the number
of votes for the other party to that for the first one
is multiplied by zero. The end result would be zero
additional seat for each of the other qualified
parties as well.
The above formula does not give an exact
mathematical representation of the number of
additional seats to be awarded since, in order to
be entitled to one additional seat, an exact whole
number is necessary. In fact, most of the actual
mathematical proportions are not whole numbers

and are not rounded off for the reasons explained

earlier. To repeat, rounding off may result in the
awarding of a number of seats in excess of that
provided by the law. Furthermore, obtaining
absolute proportional representation is restricted
by the three-seat-per-party limit to a maximum of
twoadditional slots. An increase in the maximum
number of additional representatives a party may
be entitled to would result in a more accurate
proportional representation. But the law itself has
set the limit: only two additional seats. Hence, we
need to work within such extant parameter.
The net result of the foregoing formula for
determining additional seats happily coincides
with the present number of incumbents; namely,
two for the first party (APEC) and one each for the
twelve other qualified parties. Hence, we affirm
the legality of the incumbencies of their
nominees, albeit through the use of a different
formula and methodology.
In his Dissent, Justice Mendoza criticizes our
methodology for being too strict. We say,
however, that our formula merely translated the
Philippine legal parameters into a mathematical
equation, no more no less. If Congress in its
wisdom decides to modify RA 7941 to make it less
strict, then the formula will also be modified to
reflect the changes willed by the lawmakers.
Epilogue

In sum, we hold that the Comelec gravely

abused its discretion in ruling that the thirty-eight
(38) herein respondent parties, organizations and
coalitions are each entitled to a party-list seat,
because it glaringly violated two requirements of
RA 7941: the two percent threshold and
proportional representation.
In disregarding, rejecting and circumventing
these
statutory
provisions,
the
Comelec
effectively arrogated unto itself what the
Constitution expressly and wholly vested in the
legislature: the power and the discretion to define
the mechanics for the enforcement of the
system. The wisdom and the propriety of these
impositions, absent any clear transgression of the
Constitution or grave abuse of discretion
amounting to lack or excess of jurisdiction, are
beyond judicial review.[28]
Indeed, the Comelec and the other parties in
these cases - both petitioners and respondents have
failed
to
demonstrate
that
our
lawmakers gravely abused their discretion in
prescribing
such
requirements. By grave abuse of discretion is
meant such capricious or whimsical exercise of
judgment equivalent to lack or excess of
jurisdiction.[29]
The Comelec, which is tasked merely to
enforce and administer election-related laws,
[30]
cannot simply disregard an act of Congress
exercised within the bounds of its authority. As a

mere implementing body, it cannot judge the

wisdom, propriety or rationality of such act. Its
recourse is to draft an amendment to the law and
lobby for its approval and enactment by the
legislature.
Furthermore, a reading of the entire
Constitution reveals no violation of any of its
provisions by the strict enforcement of RA 7941. It
is basic that to strike down a law or any of its
provisions as unconstitutional, there must be a
clear and unequivocal showing that what the
Constitution prohibits, the statute permits.[31]
Neither can we grant petitioners prayer that
they each be given additional seats (for a total of
three each), because granting such plea would
plainly and simply violate the proportional
representation mandated by Section 11 (b) of RA
7941.
The low turnout of the party-list votes during
the 1998 elections should not be interpreted as a
total failure of the law in fulfilling the object of this
new system of representation. It should not be
deemed a conclusive indication that the
requirements imposed by RA 7941 wholly
defeated the implementation of the system. Be it
remembered that the party-list system, though
already popular in parliamentary democracies, is
still quite new in our presidential system. We
should allow it some time to take root in the
consciousness of our people and in the heart of
our tripartite form of republicanism. Indeed, the

Comelec and the defeated litigants should not

despair.
Quite the contrary, the dismal result of the
first election for party-list representatives should
serve as a challenge to our sectoral parties and
organizations. It should stir them to be more
active and vigilant in their campaign for
representation in the State's lawmaking body. It
should also serve as a clarion call for innovation
and creativity in adopting this novel system of
popular democracy.
With adequate information dissemination to
the public and more active sectoral parties, we
are confident our people will be more responsive
to future party-list elections. Armed with patience,
perseverance and perspicacity, our marginalized
sectors, in time, will fulfill the Filipino dream of full
representation in Congress under the aegis of the
party-list system, Philippine style.
WHEREFORE, the Petitions are hereby
partially GRANTED. The assailed Resolutions of
the Comelec are SET ASIDE and NULLIFIED. The
proclamations of the fourteen (14) sitting partylist representatives - two for APEC and one each
for the remaining twelve (12) qualified parties are AFFIRMED. No pronouncement as to costs.
SO ORDERED.

BARANGAY ASSOCIATION FOR G.R. No. 179271

NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT),
Petitioner,
- versus COMMISSION ON ELECTIONS
(sitting as the National Board of
Canvassers),
Respondent.
ARTS BUSINESS AND SCIENCE
PROFESSIONALS,
Intervenor.
AANGAT TAYO,
Intervenor.
COALITION OF ASSOCIATIONS
OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR
CITIZENS),
Intervenor.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
BAYAN MUNA, ADVOCACY FOR G.R. No. 179295

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

TEACHER EMPOWERMENT

-------x

THROUGH ACTION, COOPERATION Present:

AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC., PUNO, C.J.,

DECISION

and ABONO, QUISUMBING,

Petitioners, YNARES-SANTIAGO,

CARPIO, J.:

CARPIO,
AUSTRIA-MARTINEZ,

The Case

CORONA,
- versus - CARPIO MORALES,

Petitioner in G.R. No. 179271 Barangay Association for

TINGA,

National Advancement and Transparency (BANAT) in a

CHICO-NAZARIO,

petition for certiorari and mandamus, [1] assails the

VELASCO, JR.,

Resolution[2]promulgated on 3 August 2007 by the

NACHURA,

Commission on Elections (COMELEC) in NBC No. 07-

LEONARDO-DE

041 (PL). The COMELECs resolution in NBC No. 07-041

CASTRO,

(PL) approved the recommendation of Atty. Alioden D.

BRION,

Dalaig, Head of the National Board of Canvassers

PERALTA, and

(NBC) Legal Group, to deny the petition of BANAT for

BERSAMIN, JJ.

being moot. BANAT filed before the COMELEC En Banc,

acting as NBC, a Petition to Proclaim the Full Number
of

COMMISSION ON ELECTIONS, Promulgated:

Respondent.
_______________________

Party-List

Constitution.

Representatives

Provided

by

the

The following are intervenors in G.R. No. 179271: Arts

The Facts

Business and Science Professionals (ABS), Aangat Tayo

The 14 May 2007 elections included the elections for

(AT), and Coalition of Associations of Senior Citizens in

the party-list representatives. The COMELEC counted

the Philippines, Inc. (Senior Citizens).

15,950,900 votes cast for 93 parties under the PartyList System.[6]

Petitioners in G.R. No. 179295 Bayan Muna, Abono,

On 27 June 2002, BANAT filed a Petition to Proclaim

and Advocacy for Teacher Empowerment Through

the Full Number of Party-List Representatives Provided

Action, Cooperation and Harmony Towards Educational

by the Constitution, docketed as NBC No. 07-041 (PL)

Reforms (A Teacher) in a petition for certiorari with

before the NBC.BANAT filed its petition because [t]he

mandamus and prohibition,[3] assails NBC Resolution

Chairman and the Members of the [COMELEC] have

No. 07-60
60

[4]

promulgated on 9 July 2007. NBC No. 07-

made

partial

proclamation

of

parties,

recently been quoted in the national papers that the

[COMELEC] is duty bound to and shall implement

organizations and coalitions that obtained at least two

the Veterans ruling,

percent of the total votes cast under the Party-List

Panganiban formula in allocating party-list seats.

System. The

[7]

COMELEC

announced

that,

upon

that

is,

would

apply

the

There were no intervenors in BANATs petition before

completion of the canvass of the party-list results, it

the NBC. BANAT filed a memorandum on 19 July 2007.

would determine the total number of seats of each

On 9 July 2007, the COMELEC, sitting as the NBC,

winning party, organization, or coalition in accordance

promulgated

with Veterans

Resolution No. 07-60 proclaimed thirteen (13) parties

Federation

Party

v.

COMELEC[5] (Veterans).

NBC

Resolution

No.

07-60. NBC

as winners in the party-list elections, namely: Buhay

Hayaan Yumabong (BUHAY), Bayan Muna, Citizens

Estrella DL Santos, in her capacity as President and

Battle Against Corruption (CIBAC), Gabrielas Women

First Nominee of the Veterans Freedom Party, filed a

Party (Gabriela), Association of Philippine Electric

motion to intervene in both G.R. Nos. 179271 and

Cooperatives (APEC), A Teacher, Akbayan! Citizens

179295.

Action Party (AKBAYAN), Alagad, Luzon Farmers Party

(BUTIL),

Cooperative-Natco

Network

Party

(COOP-

NATCCO), Anak Pawis, Alliance of Rural Concerns

uncanvassed/

(ARC), and Abono. We quote NBC Resolution No. 07-60

deferred)

in its entirety below:

Projected/Maximum Party-List Votes

for May 2007 Elections
party-list

votes

already

votes

remaining

canvassed/tabulated
ii.

Total

(i.e.

canvass

1,337,0

iii. Maximum party-list votes (based on 100%

WHEREAS, the Commission on Elections

sitting en banc as National Board of
Canvassers, thru its Sub-Committee for
Party-List, as of 03 July 2007, had
officially canvassed, in open and public
proceedings, a total of fifteen million
two hundred eighty three thousand
six
hundred
fifty-nine
(15,283,659) votes under the Party-List
System of Representation, in connection
with the National and Local Elections
conducted last 14 May 2007;
WHEREAS, the study conducted by the
Legal and Tabulation Groups of the
National Board of Canvassers reveals that
the projected/maximum total party-list
votes cannot go any higher than sixteen
million seven hundred twenty three
thousand one hundred twenty-one
(16,723,121) votes given the following
statistical data:

i. Total

untabulated

party-list

outcome) from areas not yet submitted for

canvass (Bogo, Cebu; Bais City; Pantar,
Lanao

del

Norte;

and

Pagalungan,

102,4

Maguindanao)
Maximum Total Party-List Votes
WHEREAS, Section 11 of Republic Act No.
7941 (Party-List System Act) provides in
part:
The parties, organizations,
and coalitions receiving at
least two percent (2%) of the
total votes cast for the partylist system shall be entitled to
one seat each: provided, that
those garnering more than
two percent (2%) of the votes
shall be entitled to additional
seats in proportion to their
total
number
of
votes:
provided, finally, that each
party,
organization,
or
coalition shall be entitled to
not more than three (3) seats.
WHEREAS, for the 2007 Elections, based
on the above projected total of party-list
votes, the presumptive two percent (2%)

16,723,12

threshold can be pegged at three

hundred thirty four thousand four
hundred sixty-two (334,462) votes;
WHEREAS, the Supreme Court, in Citizens
Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans
Federation
Party
versus
COMELEC adopting a formula for the
additional
seats
of
each
party,
organization or coalition receving more
than the required two percent (2%) votes,
stating that the same shall be determined
only after all party-list ballots have been
completely canvassed;
WHEREAS, the parties, organizations, and
coalitions that have thus far garnered at
least three
hundred
thirty
four
thousand four hundred sixty-two
(334,462) votes are as follows:

AKBAYAN

470,872

ALAGAD

423,076

BUTIL

405,052

10

COOP-NATCO

390,029

11

BATAS

386,361

12

ANAK PAWIS

376,036

13

ARC

338,194

14

ABONO

337,046

BUHAY

BAYAN MUNA

CIBAC

GABRIELA

WHEREAS, except for Bagong Alyansang

Tagapagtaguyod
ng
Adhikaing
Sambayanan (BATAS), against which
an URGENT
PETITION
FOR
CANCELLATION/REMOVAL
OF
REGISTRATION AND DISQUALIFICATION
OF PARTY-LIST NOMINEE (With Prayer for
RECEIVED the Issuance of Restraining Order) has
been filed before the Commission,
1,163,218
docketed as SPC No. 07-250, all the
parties, organizations and coalitions
972,730
included in the aforementioned list are
therefore entitled to at least one seat
760,260
under
the
party-list
system
of
representation
in
the
meantime.
610,451

APEC

538,971

A TEACHER

476,036

RANK

PARTY/ORGANIZATION/
COALITION

NOW, THEREFORE, by virtue of the

powers vested in it by the Constitution,
the Omnibus Election Code, Executive
Order No. 144, Republic Act Nos. 6646,

7166, 7941, and other election laws, the

Commission on Elections, sitting en
banc as the National Board of Canvassers,
hereby
RESOLVES
to
PARTIALLY
PROCLAIM, subject to certain conditions
set forth below, the following parties,
organizations and coalitions participating
under the Party-List System:
1

Buhay Hayaan Yumabong

Bayan Muna

Citizens Battle Against Corruption

Gabriela Womens Party

Association

12 Alliance of Rural Concerns

13 Abono

BUHAY
BAYAN MUNA

of

CIBAC
GABRIELA

Philippine

Electric

APEC

Cooperatives
6

Advocacy for Teacher Empowerment

Through

Action,

Harmony

Cooperation

Towards

and

Educational

Reforms, Inc.
Akbayan! Citizens Action Party

AKBAYAN

Alagad

ALAGAD

Luzon Farmers Party

11 Anak Pawis

The total number of seats of each winning

party, organization or coalition shall be
determined
pursuant
to Veterans
Federation
Party
versus
COMELEC formula upon completion of the
canvass of the party-list results.

The proclamation of Bagong Alyansang

A TEACHER Tagapagtaguyod
ng
Adhikaing
Sambayanan (BATAS) is hereby deferred
until final resolution of SPC No. 07-250, in
order not to render the proceedings
therein moot and academic.

10 Cooperative-Natco Network Party

This is without prejudice to the

proclamation
of
other
parties,
organizations, or coalitions which may
later on be established to have obtained
at least two percent (2%) of the total
actual votes cast under the Party-List
System.

BUTIL

Finally, all proclamation of the nominees

of concerned parties, organizations and
coalitions with pending disputes shall
likewise be held in abeyance until final
resolution of their respective cases.

COOP-NATCCOLet
ANAKPAWIS

the Clerk of the Commission

implement this Resolution, furnishing a

ARC
ABONO

copy thereof to the Speaker of the House

of Representatives of the Philippines.
SO ORDERED.[8] (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC,

received but uncanvassed, and maximum

votes expected for Pantar, Lanao del
Norte, is 16,261,369; and that the
projected maximum total votes for the
thirteen
(13)
qualified
parties,
organizations and coalition[s] are as
follows:

acting as NBC, promulgated NBC Resolution No. 07-72,

Party-List

which declared the additional seats allocated to the

appropriate parties.We quote from the COMELECs

Projected total number

votes

interpretation of the Veterans formula as found in NBC

BUHAY

1,178,747

Resolution No. 07-72:

BAYAN MUNA

977,476

CIBAC

755,964

GABRIELA

621,718

APEC

622,489

A TEACHER

492,369

AKBAYAN

462,674

ALAGAD

423,190

BUTIL

409,298

10

COOP-NATCO

412,920

11

ANAKPAWIS

370,165

12

ARC

375,846

13

ABONO

340,151

WHEREAS, on July 9, 2007, the

Commission
on
Elections
sitting en
banc as the National Board of Canvassers
proclaimed thirteen (13) qualified parties,
organization[s] and coalitions based on
the presumptive two percent (2%)
threshold of 334,462 votes from the
projected maximum total number of
party-list votes of 16,723,121, and were
thus given one (1) guaranteed party-list
seat each;
WHEREAS, per Report of the Tabulation
Group and Supervisory Committee of the
National Board of Canvassers, the
projected maximum total party-list votes,
as of July 11, 2007, based on the votes
actually canvassed, votes canvassed but
not included in Report No. 29, votes

WHEREAS,
based
on
the
above
Report, Buhay Hayaan Yumabong (Buhay)
obtained the highest number of votes
among the thirteen (13) qualified parties,
organizations and coalitions, making it
the
first
party
in
accordance
with Veterans Federation Party versus
COMELEC, reiterated in Citizens Battle
Against
Corruption
(CIBAC)
versus
COMELEC;
WHEREAS, qualified parties, organizations
and coalitions participating under the
party-list system of representation that
have obtained one guaranteed (1) seat
may be entitled to an additional seat or
seats based on the formula prescribed by
the Supreme Court in Veterans;
WHEREAS, in determining the additional
seats for the first party, the correct
formula as expressed in Veterans, is:
Number of votes of first party Proportion
of votes of first
- - - - - - - - - - - - - - - - - - - - - = party
relative to total votes for
Total votes for party-list system party-list
system
wherein the proportion of votes received
by the first party (without rounding off)
shall entitle it to additional seats:
Proportion of votes received
by the first party

Equal to or at least 6%

Two (2) additional sea

Equal to or greater than 4% but less One (1) additional se

than 6%
Less than 4%

No additional seat

WHEREAS, applying the above formula,

Buhay obtained the following percentage:
1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369
which entitles it to two (2) additional
seats.
WHEREAS, in determining the additional
seats for the other qualified parties,
organizations and coalitions, the correct
formula as expressed in Veterans and
reiterated in CIBAC is, as follows:
No. of votes of
concerned party No. of additional
Additional
seats
for = ------------------- x seats allocated to
a concerned party No. of votes of first
party
first party
WHEREAS, applying the above formula,
the results are as follows:
Additional seats

Party List

Percentage

coalitions as entitled to additional seats,

Additional Seat
to wit:

BAYAN MUNA

1.65

CIBAC

1.28

GABRIELA

1.05

BUHAY

APEC

1.05

BAYAN MUNA

A TEACHER

0.83

CIBAC

AKBAYAN

0.78

GABRIELA

ALAGAD

0.71

APEC

BUTIL

0.69

COOP-NATCO

0.69

ANAKPAWIS

0.62

ARC

0.63

ABONO

0.57

NOW THEREFORE, by virtue of the powers

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

Party List

Additional Seats

This is without prejudice to the

proclamation
of
other
parties,
organizations or coalitions which may
later on be established to have obtained
at least two per cent (2%) of the total
votes cast under the party-list system to
entitle them to one (1) guaranteed seat,
or to the appropriate percentage of votes
to entitle them to one (1) additional seat.
Finally, all proclamation of the nominees
of concerned parties, organizations and
coalitions with pending disputes shall
likewise be held in abeyance until final
resolution of their respective cases.
Let the National Board of Canvassers
Secretariat implement this Resolution,
furnishing a copy hereof to the Speaker of
the House of Representatives of the
Philippines.

the Constitution prayed for

the following reliefs, to wit:

SO ORDERED.[9]
Acting on BANATs petition, the NBC promulgated NBC
Resolution No. 07-88 on 3 August 2007, which reads as
follows:

This pertains to the Petition to Proclaim

the
Full
Number
of
Party-List
Representatives
Provided
by
the
Constitution filed by the Barangay
Association for National Advancement
and Transparency (BANAT).
Acting on the foregoing Petition of the
Barangay
Association
for
National
Advancement and Transparency (BANAT)
party-list, Atty. Alioden D. Dalaig, Head,
National Board of Canvassers Legal Group
submitted his comments/observations
and recommendation thereon [NBC 07041 (PL)], which reads:
COMMENTS
OBSERVATIONS:

Petitioner
Barangay
Association
for
National
Advancement
and
Transparency (BANAT), in its
Petition to Proclaim the Full
Number
of
Party-List
Representatives Provided by

1. That the full number -twenty percent (20%) -- of

Party-List representatives as
mandated by Section 5,
Article VI of the Constitution
shall be proclaimed.
2. Paragraph (b), Section 11
of RA 7941 which prescribes
the 2% threshold votes,
should be harmonized with
Section 5, Article VI of the
Constitution and with Section
12 of the same RA 7941 in
that it should be applicable
only to the first party-list
representative seats to be
allotted on the basis of their
initial/first ranking.
3. The 3-seat limit prescribed
by RA 7941 shall be applied;
and
4. Initially,
all
party-list
groups shall be given the
number
of
seats
corresponding to every 2% of
the votes they received and
the additional seats shall be
allocated in accordance with
Section 12 of RA 7941, that
is, in proportion to the

percentage of votes obtained

by each party-list group in
relation
to
the
total
nationwide votes cast in the
party-list
election,
after
deducting the corresponding
votes of those which were
allotted seats under the 2%
threshold rule. In fine, the
formula/procedure
prescribed
in
the
ALLOCATION OF PARTY-LIST
SEATS, ANNEX A of COMELEC
RESOLUTION 2847 dated 25
June 1996, shall be used for
[the] purpose of determining
how many seats shall be
proclaimed, which party-list
groups
are
entitled
to
representative seats and how
many of their nominees shall
seat [sic].
5. In the alternative, to
declare as unconstitutional
Section 11 of Republic Act
No. 7941 and that the
procedure in allocating seats
for party-list representative
prescribed by Section 12 of
RA 7941 shall be followed.
RECOMMENDATION:
The petition of BANAT is now
moot and academic.

The Commission En Banc in

NBC Resolution No. 07-60
promulgated July 9, 2007
re In the Matter of the
Canvass of Votes and Partial
Proclamation of the Parties,
Organizations and Coalitions
Participating Under the PartyList System During the May
14, 2007 National and Local
Elections resolved
among
others that the total number
of seats of each winning
party,
organization
or
coalition shall be determined
pursuant
to
the Veterans
Federation
Party versus COMELEC formu
la upon completion of the
canvass of the party-list
results.
WHEREFORE, premises considered, the
National Board of Canvassers RESOLVED,
as it hereby RESOLVES, to approve and
adopt the recommendation of Atty.
Alioden D. Dalaig, Head, NBC Legal
Group, to DENY the herein petition of
BANAT for being moot and academic.
Let
the
Supervisory
Committee
implement this resolution.
SO ORDERED.[10]

BANAT filed a petition for certiorari and mandamus

1.1

Buhay

1.2

Bayan Muna

1.3

CIBAC

1.4

Gabriela

1.5

APEC

1.6

A Teacher

because

1.7

Akbayan

the Veterans formula is violative of the Constitution

1.8

Alagad

1.9

Butil

1.10

Coop-Natco [sic]

1.11

Anak Pawis

1.12

ARC

three other party-list organizations as qualified parties

1.13

Abono

entitled to one guaranteed seat under the Party-List

1.14

AGAP

1.15

AMIN

assailing

the

ruling

in

NBC

Resolution

No.

07-

88. BANAT did not file a motion for reconsideration of

NBC Resolution No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher
asked the COMELEC, acting as NBC, to reconsider its
decision to use the Veterans formula as stated in its
NBC

Resolution

No.

07-60

and of Republic Act No. 7941 (R.A. No. 7941). On the

same day, the COMELEC denied reconsideration during
the proceedings of the NBC.[11]
Aside

from

the

thirteen

party-list

organizations

proclaimed on 9 July 2007, the COMELEC proclaimed

System: Agricultural Sector Alliance of the Philippines,

Inc.

(AGAP),[12] Anak

Waray.[14] Per

the

Mindanao

(AMIN),[13] and

certification[15] by

COMELEC,

An
the

following party-list organizations have been proclaimed

as of 19 May 2008:

The

of

Bagong

Alyansang

Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),

against

Party-List

proclamation
which

an

Urgent

Petition

for

Cancellation/Removal
of
Registration
and
No. of Seat(s)
Disqualification of Party-list Nominee (with Prayer for

the Issuance of Restraining Order) has been filed

before the COMELEC, was deferred pending final
resolution of SPC No. 07-250.
Issues
BANAT brought the following issues before this Court:
1. Is the twenty percent allocation for
party-list
representatives provided
in
Section 5(2), Article VI of the Constitution
mandatory or is it merely a ceiling?
2. Is the three-seat limit provided in
Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold and
qualifier votes prescribed by the same
Section 11(b) of RA 7941 constitutional?
4. How shall the party-list representatives
be allocated?[16]
Bayan Muna, A Teacher, and Abono, on the other hand,
raised the following issues in their petition:
I. Respondent Commission on Elections,
acting as National Board of Canvassers,
committed grave abuse of discretion
amounting to lack or excess of jurisdiction
when it promulgated NBC Resolution No.

07-60 to implement the First-Party Rule in

the allocation of seats to qualified partylist organizations as said rule:
A. Violates the constitutional principle of
proportional representation.
B. Violates the provisions of RA 7941
particularly:
1. The 2-4-6 Formula used by the First
Party Rule in allocating additional seats
for the First Party violates the principle of
proportional
representation under
RA
7941.
2. The use of two formulas in the
allocation of additional seats, one for the
First Party and another for the qualifying
parties, violates Section 11(b) of RA 7941.
3. The proportional relationships under
the First Party Rule are different from
those required under RA 7941;
C. Violates the Four Inviolable Parameters
of the Philippine party-list system as
provided for under the same case
of Veterans Federation Party, et al. v.
COMELEC.
II. Presuming that the Commission on
Elections did not commit grave abuse of
discretion amounting to lack or excess of
jurisdiction when it implemented the FirstParty Rule in the allocation of seats to

qualified party-list organizations, the

same being merely in consonance with
the ruling in Veterans Federations Party,
et al. v. COMELEC, the instant Petition is a
justiciable case as the issues involved
herein are constitutional in nature,
involving the correct interpretation and
implementation of RA 7941, and are
of transcendental importance to our
nation.[17]

major political parties be barred from

participating in the party-list elections?[18]

The Ruling of the Court

The petitions have partial merit. We maintain that a
Philippine-style party-list election has at least four
inviolable parameters as clearly stated in Veterans. For

Considering the allegations in the petitions and the

comments of the parties in these cases, we defined
the following issues in our advisory for the oral
arguments set on 22 April 2008:
1. Is the twenty percent allocation for
party-list representatives in Section 5(2),
Article VI of the Constitution mandatory
or merely a ceiling?
2. Is the three-seat limit in Section 11(b)
of RA 7941 constitutional?
3. Is the two percent threshold prescribed
in Section 11(b) of RA 7941 to qualify for
one seat constitutional?
4. How shall the party-list representative
seats be allocated?
5. Does the Constitution prohibit the
major political parties from participating
in the party-list elections? If not, can the

easy reference, these are:

First, the twenty percent allocation the
combined
number
of all party-list
congressmen shall not exceed twenty
percent of the total membership of the
House of Representatives, including those
elected under the party list;
Second, the two percent threshold only
those parties garnering a minimum of two
percent of the total valid votes cast for
the party-list system are qualified to have
a seat in the House of Representatives;
Third, the three-seat limit each qualified
party, regardless of the number of votes
it actually obtained, is entitled to a
maximum of three seats; that is, one
qualifying and two additional seats;
Fourth, proportional representation the
additional seats which a qualified party is
entitled to shall be computed in

proportion to their total number of votes.

[19]

(2) The party-list representatives shall

constitute twenty per centum of the total
number of representatives including
those under the party-list. For three
consecutive terms after the ratification of
this Constitution, one-half of the seats
allocated to party-list representatives
shall be filled, as provided by law, by
selection or election from the labor,
peasant, urban poor, indigenous cultural
communities, women, youth, and such
other sectors as may be provided by law,
except the religious sector.

However, because the formula in Veterans has flaws in

its

mathematical

interpretation

of

the

term

proportional representation, this Court is compelled to

revisit the formula for the allocation of additional seats
to party-list organizations.
Number of Party-List Representatives:
The Formula Mandated by the Constitution

The first paragraph of Section 11 of R.A. No. 7941

Section 5, Article VI of the Constitution provides:
Section
5.
(1)
The
House
of
Representatives shall be composed of not
more than two hundred and fifty
members, unless otherwise fixed by law,
who shall be elected from legislative
districts
apportioned
among
the
provinces, cities, and the Metropolitan
Manila area in accordance with the
number of their respective inhabitants,
and on the basis of a uniform and
progressive ratio, and those who, as
provided by law, shall be elected through
a party-list system of registered national,
regional,
and
sectoral
parties
or
organizations.

reads:
Section
11. Number
of
Party-List
Representatives. The
party-list
representatives shall constitute twenty
per centum (20%) of the total number of
the
members
of
the
House
of
Representatives including those under the
party-list.
xxx

Section 5(1), Article VI of the Constitution states that

the House of Representatives shall be composed of not
more than two hundred and fifty members, unless
otherwise fixed by law. The House of Representatives

shall be composed of district representatives and

220

party-list representatives. The Constitution allows the

Section 5(2), Article VI of the Constitution, on the other

hand, states the ratio of party-list representatives to
the total number of representatives. We compute the
number of seats available to party-list representatives
from the number of legislative districts. On this point,

55

.80

legislature to modify the number of the members of

the House of Representatives.

x .20 =

After prescribing the ratio of the number of party-list

representatives

to

the

total

number

of

representatives, the Constitution left the manner

of allocating the seats available to party-list
representatives to the wisdom of the legislature.

we do not deviate from the first formula in Veterans,

Allocation of Seats for Party-List

thus:

Representatives:
Number of seats
available to legislative

x .20 =

districts

The Statutory Limits Presented by the Two

Number of seats available to
Percent Threshold
party-list representatives
and the Three-Seat Cap

.80
All parties agree on the formula to determine the
This formula allows for the corresponding increase in
the

number

of

representatives
created

by

seats

available

whenever

law.

Since

the

for

legislative

party-list
district

14th Congress

of

is
the

Philippines has 220 district representatives, there are

55 seats available to party-list representatives.

maximum number of seats reserved under the PartyList System, as well as on the formula to determine the
guaranteed seats to party-list candidates garnering at
least two-percent of the total party-list votes. However,
there are numerous interpretations of the provisions of
R.A.

No.

7941

on

the

allocation

of additional

seatsunder the Party-List System. Veterans produced

the First Party Rule,[20] and Justice Vicente V. Mendozas

dissent

in Veterans presented

Germanys

be entitled to not more than three (3)

seats.

Niemeyer

formula[21] as an alternative.

Section 12. Procedure in Allocating Seats

for
Party-List
Representatives. The
COMELEC shall tally all the votes for the
parties, organizations, or coalitions on a
nationwide basis, rank them according to
the number of votes received and
allocate
party-list
representatives
proportionately
according
to
the
percentage of votes obtained by each
party, organization, or coalition as against
the total nationwide votes cast for the
party-list system. (Emphasis supplied)

The Constitution left to Congress the determination of

the

manner of allocating

representatives.

the

Congress

seats for
enacted

party-list
R.A. No.

7941, paragraphs (a) and (b) of Section 11 and Section

12 of which provide:
Section
11. Number
Representatives. x x x

of

Party-List

In determining the allocation of seats for

the
second
vote,[22] the
following
procedure shall be observed:

In

G.R.

No.

179271,

BANAT

presents

two

(a) The
parties,
organizations,
and
coalitions shall be ranked from the
highest to the lowest based on the
number of votes they garnered during the
elections.

interpretations through three formulas to allocate

(b) The
parties,
organizations,
and
coalitions receiving at least two percent
(2%) of the total votes cast for the partylist system shall be entitled to one seat
each: Provided, That those garnering
more than two percent (2%) of the
votes shall be entitled to additional
seats in proportion to their total
number of votes: Provided, finally, That
each party, organization, or coalition shall

provisions of Section 11(b) on the 2% requirement with

party-list representative seats.

The

first

interpretation

allegedly

harmonizes

the

Section 12 of R.A. No. 7941. BANAT described this

procedure as follows:
(a) The party-list representatives shall
constitute twenty percent (20%) of the
total
Members
of
the
House
of
Representatives including those from the
party-list groups as prescribed by Section
5, Article VI of the Constitution, Section

11 (1st par.) of RA 7941 and Comelec

Resolution No. 2847 dated 25 June
1996. Since there are 220 District
Representatives in the 14th Congress,
there
shall
be
55
Party-List
Representatives. All seats shall have to be
proclaimed.
(b) All party-list groups shall initially be
allotted one (1) seat for every two per
centum (2%) of the total party-list votes
they obtained; provided, that no party-list
groups shall have more than three (3)
seats (Section 11, RA 7941).
(c) The remaining seats shall, after
deducting the seats obtained by the
party-list groups under the immediately
preceding paragraph and after deducting
from their total the votes corresponding
to those seats, the remaining seats shall
be allotted proportionately to all the
party-list groups which have not secured
the maximum three (3) seats under the
2% threshold rule, in accordance with
Section 12 of RA 7941.[23]

representatives by following Section 12 of R.A. No.

7941. BANAT states that the COMELEC:
(a) shall tally all the votes for the parties,
organizations,
or
coalitions on
a
nationwide basis;
(b) rank them according to the number of
votes received; and,
(c) allocate
party-list
representatives
proportionately according
to
the percentage of votes obtained by each
party, organization or coalition as against
the total nationwide votes cast for the
party-list system.[24]
BANAT used two formulas to obtain the same results:
one is based on the proportional percentage of the
votes received by each party as against the total
nationwide party-list votes, and the other is by making
the votes of a party-list with a median percentage of
votes as the divisor in computing the allocation of
seats.[25] Thirty-four

(34)

party-list

seats

will

be

awarded under BANATs second interpretation.

Forty-four (44) party-list seats will be awarded under
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher

BANATs first interpretation.

criticize both the COMELECs original 2-4-6 formula and

BANAT

the Veterans formula for systematically preventing all

assumes that the 2% vote requirement is declared

the party-list seats from being filled up. They claim

unconstitutional, and apportions the seats for party-list

that both formulas do not factor in the total number of

The

second

interpretation

presented

by

seats alloted for the entire Party-List System. Bayan

Muna, Abono, and A Teacher reject the three-seat cap,
but accept the 2% threshold. After determining the
qualified parties, a second percentage is generated by
dividing the votes of a qualified party by the total

Table 1. Ranking of the participating

parties from the highest to the lowest
based on the number of votes garnered
during the elections.[27]

votes of all qualified parties only. The number of seats

allocated

to

qualified

party

is

computed

by

multiplying the total party-list seats available with the

Ran

second percentage. There will be a first round of seat

Votes
Party

Garnere
d

allocation, limited to using the whole integers as the

equivalent of the number of seats allocated to the

1 BUHAY

1,169,234

concerned party-list. After all the qualified parties are

2 BAYAN

given their seats, a second round of seat allocation

MUNA

is conducted. The fractions, or remainders, from the

whole integers are ranked from highest to lowest and
the remaining seats on the basis of this ranking are
allocated until all the seats are filled up.

[26]

We examine what R.A. No. 7941 prescribes to allocate

seats for party-list representatives.
Section 11(a) of R.A. No. 7941 prescribes the ranking
of the participating parties from the highest to the
lowest based on the number of votes they garnered
during the elections.

Ran
k

Party

Votes

Garner

48 KALAHI

88,8

979,039

49 APOI

79,3

3 CIBAC

755,686

50 BP

78,5

4 GABRIELA

621,171

51 AHONBAYAN

78,4

5 APEC

619,657

52 BIGKIS

77,3

6 A TEACHER

490,379

53 PMAP

75,2

7 AKBAYAN

466,112

54 AKAPIN

74,6

8 ALAGAD

423,149

55 PBA

71,5

9 COOP-

409,883

56 GRECON

62,2

409,160

57 BTM

60,9

NATCCO
10 BUTIL

11 BATAS

385,810

58 A SMILE

12 ARC

374,288

59 NELFFI

29 ANAD

188,521

76 VENDORS

33,6

13 ANAKPAWIS

370,261

60 AKSA

30 BANAT

177,028

77 ADD-TRIBAL

32,8

14 ABONO

339,990

61 BAGO

31 ANG

170,531

78 ALMANA

32,2

15 AMIN

338,185

62 BANDILA

16 AGAP

328,724

63 AHON

169,801

79 AANGAT

17 AN WARAY

321,503

64 ASAHAN MO

18 YACAP

310,889

65 AGBIAG!

19 FPJPM

300,923

66 SPI

20 UNI-MAD

245,382

67 BAHANDI

21 ABS

235,086

68 ADD

22 KAKUSA

228,999

69 AMANG

23 KABATAAN

228,637

70 ABAY PARAK

24 ABA-AKO

218,818

71 BABAE KA

25 ALIF

217,822

72 SB

26 SENIOR

213,058

73 ASAP

CITIZENS

ILONGGO

KASANGGA
32 BANTAY

KA

29,1

PILIPINO
33 ABAKADA

166,747

80 AAPS

26,2

34 1-UTAK

164,980

81 HAPI

25,7

35 TUCP

162,647

82 AAWAS

22,9

36 COCOFED

155,920

83 SM

20,7

37 AGHAM

146,032

84 AG

16,9

38 ANAK

141,817

85 AGING PINOY

16,7

39 ABANSE!

130,356

86 APO

16,4

119,054

87 BIYAYANG

16,2

PINAY
40 PM

BUKID
41 AVE

110,769

88 ATS

14,1

27 AT

197,872

74 PEP

42 SUARA

110,732

89 UMDJ

9,4

28 VFP

196,266

75 ABA

43 ASSALAM

110,440

90 BUKLOD

8,9

FILIPINA
44 DIWA

107,021

Votes
Garnered

91 LYPAD

45 ANC

99,636

92 AA-KASOSYO

46 SANLAKAS

97,375

93 KASAPI

47 ABC

90,058

Rank

Party

Votes

over Total

Garnered

Votes for
Party-List,
in %

TOTAL
1 BUHAY

1,169,234

7.33%

2 BAYAN MUNA

979,039

6.14%

3 CIBAC

755,686

4.74%

that parties, organizations, and coalitions receiving at

4 GABRIELA

621,171

3.89%

least two percent (2%) of the total votes cast for the

5 APEC

619,657

3.88%

6 A TEACHER

490,379

3.07%

percenters. In Table 2 below, we use the first 20 party-

7 AKBAYAN

466,112

2.92%

list

8 ALAGAD

423,149

2.65%

9 COOP-NATCCO

409,883

2.57%

10 BUTIL

409,160

2.57%

11 BATAS[29]

385,810

2.42%

12 ARC

374,288

2.35%

13 ANAKPAWIS

370,261

2.32%

14 ABONO

339,990

2.13%

The first clause of Section 11(b) of R.A. No. 7941 states

party-list

system

shall

be

entitled

to

one

seat

each. This clause guarantees a seat to the twocandidates

for

illustration

purposes. The

percentage of votes garnered by each party is arrived

at by dividing the number of votes garnered by each
party by 15,950,900, the total number of votes cast for
all party-list candidates.
Table 2. The first 20 party-list candidates
and their respective percentage of votes
garnered over the total votes for the
party-list.[28]

Guarante
Seat

15 AMIN

338,185

2.12%

16 AGAP

328,724

2.06%

17 AN WARAY

321,503

2.02%

18 YACAP

310,889

1.95%

19 FPJPM

300,923

1.89%

20 UNI-MAD

245,382

1.54%

From Table 2 above, we see that only 17 party-list

candidates received at least 2% from the total number
of votes cast for party-list candidates. The 17 qualified
party-list candidates, or the two-percenters, are the
party-list candidates that are entitled to one seat each,
or the guaranteed seat. In this first round of seat
allocation, we distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941
provides that those garnering more than two percent
(2%) of the votes shall be entitled to additional
seats in proportion to their total number of
problem

is

where
with

interpretation is contrary to the express language of

R.A. No. 7941.
We rule that, in computing the allocation of additional

Total

votes. This

proportion to the votes of the first party. This

petitioners

and

the

in Veterans lies. Veterans interprets

intervenors
formula

the

clause

in

proportion to their total number of votes to be in

seats, the continued operation of the two percent

threshold for the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No.
7941 is unconstitutional. This Court finds that the
two

percent

impossible

threshold

to achieve

makes
the

it

mathematically

maximum

number of

available party list seats when the number of available

party list seats exceeds 50. The continued operation of
the two percent threshold in the distribution of the
additional seats frustrates the attainment of the
permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list
representatives.
To

illustrate: There

are

55

available

party-list

seats. Suppose there are 50 million votes cast for the

100 participants in the party list elections. A party that
has two percent of the votes cast, or one million votes,
gets a guaranteed seat. Let us further assume that the
first 50 parties all get one million votes. Only 50
parties get a seat despite the availability of 55

seats. Because of the operation of the two percent

on the number of votes they garnered during the

threshold, this situation will repeat itself even if we

elections.

increase the available party-list seats to 60 seats and

even if we increase the votes cast to 100 million.Thus,

2.

The parties, organizations, and coalitions

even if the maximum number of parties get two

receiving at least two percent (2%) of the total votes

percent of the votes for every party, it is always

cast for the party-list system shall be entitled to one

impossible for the number of occupied party-list seats

guaranteed seat each.

to exceed 50 seats as long as the two percent

threshold is present.

3.

Those

garnering

sufficient

number

of

votes, according to the ranking in paragraph 1, shall

We therefore strike down the two percent threshold

be entitled to additional seats in proportion to their

only in relation to the distribution of the additional

total number of votes until all the additional seats are

seats as found in the second clause of Section 11(b) of

allocated.

R.A. No. 7941. The two percent threshold presents an

unwarranted obstacle to the full implementation of

4.

Each party, organization, or coalition shall

Section 5(2), Article VI of the Constitution and prevents

be entitled to not more than three (3) seats.

the attainment of the broadest possible representation

of party, sectoral or group interests in the House of
Representatives.

[30]

In computing the additional seats, the guaranteed

seats shall no longer be included because they have
already been allocated, at one seat each, to every two-

In determining the allocation of seats for party-list

percenter. Thus, the remaining available seats for

representatives under Section 11 of R.A. No. 7941, the

allocation as additional seats are the maximum seats

following procedure shall be observed:

reserved

under

the

Party

List

System

less

the

guaranteed seats. Fractional seats are disregarded in

1.

The parties, organizations, and coalitions

shall be ranked from the highest to the lowest based

the absence of a provision in R.A. No. 7941 allowing for

a rounding off of fractional seats.

In

declaring

the

two

percent

threshold

unconstitutional, we do not limit our allocation of

additional

seats

in

Table

below

to

the

two-

percenters. The percentage of votes garnered by each

Table 3. Distribution of Available Party-List
Seats

party-list candidate is arrived at by dividing the

number

of

votes

garnered

by

each

party

by

15,950,900, the total number of votes cast for party-

Votes

list candidates. There are two steps in the second

Garnere Guarante

round of seat allocation. First, the percentage is

d over

multiplied by the remaining available seats, 38, which

Votes

reserved under the Party-List System and the 17

guaranteed seats of the two-percenters. The whole

Ran

integer of the product of the percentage and of the

Party

remaining available seats corresponds to a partys

Votes

for

Garnere

Party

List, in
%

share in the remaining available seats. Second, we

all

available

seats

are

completely

seats in the second round of seat allocation. Finally, we

apply the three-seat cap to determine the number of
seats

each

entitled. Thus:

qualified

party-list

candidate

(First

BUHAY

1,169,23

BAYAN
MUNA

979,039

who

Round)
(C)

7.33%

2.79

6.14%

2.33

is

(C),

(Second

(A)
1

plu

rs

(B)

distributed. We distributed all of the remaining 38

(B

inte

Round)

assign one party-list seat to each of the parties next in

until

al
Seats

Total

is the difference between the 55 maximum seats

rank

ed Seat

Addition

(D

CIBAC

755,686

4.74%

1.80

GABRIELA

621,171

3.89%

1.48

APEC

619,657

3.88%

1.48

A Teacher

490,379

3.07%

1.17

AKBAYAN

466,112

2.92%

1.11

ALAGAD

423,149

2.65%

1.01

409,883

2.57%

9[31] COOPNATCCO
10

BUTIL

409,160

2.57%

11

BATAS

385,810

2.42%

12

ARC

374,288

2.35%

13

ANAKPAWIS

370,261

2.32%

14

ABONO

339,990

2.13%

15

AMIN

338,185

2.12%

16

AGAP

328,724

2.06%

17

AN WARAY

321,503

2.02%

18

YACAP

310,889

1.95%

19

FPJPM

300,923

1.89%

20

UNI-MAD

245,382

1.54%

21

ABS

235,086

1.47%

22

KAKUSA

228,999

1.44%

23

KABATAAN

228,637

1.43%

Applying the procedure of seat allocation as illustrated

24

ABA-AKO

218,818

1.37%

in

25

ALIF

217,822

1.37%

26

SENIOR

213,058

1.34%

CITIZENS

Table

above,

representatives

from

there
the

are

36

55

party-list

winning

party-list

organizations. All 55 available party-list seats are

filled. The additional seats allocated to the parties with
sufficient number of votes for one whole seat, in no

27

AT

197,872

1.24%

28

VFP

196,266

1.23%

29

ANAD

188,521

1.18%

30

BANAT

177,028

1.11%

31

ANG

170,531

1.07%

KASANGGA

case to exceed a total of three seats for each party,

are shown in column (D).
Participation of Major Political Parties in PartyList Elections
The Constitutional Commission adopted a multi-party
system

32

BANTAY

169,801

1.06%

33

ABAKADA

166,747

1.05%

34

1-UTAK

164,980

1.03%

35

TUCP

162,647

1.02%

36

COCOFED

155,920

0.98%

Tota

17

that allowed

participate

in

the

all

political

party-list

parties

to

elections. The

deliberations of the Constitutional Commission clearly

bear this out, thus:
MR. MONSOD. Madam President, I just
want to say that we suggested or
proposed the party list system because
we wanted to open up the political
system to a pluralistic society through a
multiparty system. x x x We are for

opening up the system, and we

would like very much for the sectors
to be there. That is why one of the
ways to do that is to put a ceiling on
the number of representatives from
any single party that can sit within
the 50 allocated under the party list
system. x x x.

MR. VILLACORTA. Why not? When they

come to the party list system, they
will
be
fielding
only
sectoral
candidates.
MR. MONSOD. May I be clarified on
that? Can UNIDO participate in the party
list system?

xxx
MR. MONSOD. Madam President, the
candidacy for the 198 seats is not limited
to political parties. My question is this:
Are we going to classify for example
Christian
Democrats
and
Social
Democrats as political parties? Can they
run under the party list concept or must
they be under the district legislation side
of it only?
MR. VILLACORTA. In reply to that query, I
think these parties that the Commissioner
mentioned can field candidates for the
Senate as well as for the House of
Representatives. Likewise, they can
also field sectoral candidates for the
20 percent or 30 percent, whichever
is adopted, of the seats that we are
allocating under the party list
system.
MR. MONSOD. In other words, the
Christian Democrats can field district
candidates and can also participate in the
party list system?

MR. VILLACORTA. Yes, why not? For as

long as they field candidates who
come from the different marginalized
sectors that we shall designate in
this Constitution.
MR. MONSOD. Suppose Senator Taada
wants to run under BAYAN group and says
that he represents the farmers, would he
qualify?
MR. VILLACORTA. No,
would not qualify.

Senator

Taada

MR. MONSOD. But UNIDO can field

candidates under the party list system
and say Juan dela Cruz is a farmer. Who
would pass on whether he is a farmer or
not?
MR. TADEO. Kay Commissioner Monsod,
gusto ko lamang linawin ito. Political
parties, particularly minority political
parties,
are
not
prohibited
to
participate in the party list election if

they can prove that they are also

organized along sectoral lines.
MR. MONSOD. What the Commissioner is
saying is that all political parties can
participate because it is precisely the
contention of political parties that they
represent the broad base of citizens and
that all sectors are represented in
them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin,
pag pinayagan mo ang UNIDO na isang
political party, it will dominate the party
list at mawawalang saysay din yung
sector. Lalamunin mismo ng political
parties ang party list system. Gusto ko
lamang bigyan ng diin ang reserve. Hindi
ito
reserve
seat
sa
marginalized
sectors. Kung titingnan natin itong 198
seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi
anybody can run there. But my question
to Commissioner Villacorta and probably
also to Commissioner Tadeo is that under
this system, would UNIDO be banned
from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO
may field sectoral candidates. On
that condition alone, UNIDO may be
allowed to register for the party list
system.

MR.
MONSOD. May
I
inquire
from
Commissioner Tadeo if he shares that
answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede
po
UNIDO, pero sa sectoral lines.

ang

xxxx
MR. OPLE. x x x In my opinion, this will
also create the stimulus for political
parties and mass organizations to seek
common ground. For example, we have
the PDP-Laban and the UNIDO. I see no
reason why they should not be able to
make
common
goals
with
mass
organizations so that the very leadership
of these parties can be transformed
through the participation of mass
organizations. And if this is true of the
administration parties, this will be true of
others like the Partido ng Bayan which is
now being formed. There is no question
that they will be attractive to many mass
organizations. In the opposition parties to
which we belong, there will be a stimulus
for us to contact mass organizations so
that with their participation, the policies
of such parties can be radically
transformed because this amendment will
create conditions that will challenge both
the mass organizations and the political
parties to come together. And the party
list system is certainly available, although

it is open to all the parties. It is

understood that the parties will enter in
the roll of the COMELEC the names of
representatives of mass organizations
affiliated with them. So that we may, in
time, develop this excellent system that
they have in Europe where labor
organizations
and
cooperatives, for
example, distribute themselves either in
the Social Democratic Party and the
Christian Democratic Party in Germany,
and their very presence there has a
transforming effect upon the philosophies
and the leadership of those parties.
It is also a fact well known to all that in
the United States, the AFL-CIO always
vote with the Democratic Party. But the
businessmen, most of them, always vote
with the Republican Party, meaning that
there is no reason at all why political
parties and mass organizations should not
combine,
reenforce,
influence
and
interact with each other so that the very
objectives that we set in this Constitution
for sectoral representation are achieved
in a wider, more lasting, and more
institutionalized way. Therefore, I support
this [Monsod-Villacorta] amendment. It
installs sectoral representation as a
constitutional gift, but at the same time,
it challenges the sector to rise to the
majesty of being elected representatives
later on through a party list system; and
even beyond that, to become actual
political parties capable of contesting

political power in the wider constitutional

arena for major political parties.
xxx

[32]

(Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put
forward by the Constitutional Commission. Section 3 of
R.A. No. 7941 reads:
Definition of Terms. (a) The party-list
system is a mechanism of proportional
representation
in
the
election
of
representatives
to
the
House
of
Representatives from national, regional
and sectoral parties or organizations or
coalitions thereof registered with the
Commission on Elections (COMELEC).
Component parties or organizations of a
coalition may participate independently
provided the coalition of which they form
part does not participate in the party-list
system.
(b) A party means either a political party
or a sectoral party or a coalition of
parties.
(c) A political party refers to an organized
group of citizens advocating an ideology
or platform, principles and policies for the
general conduct of government and
which, as the most immediate means of
securing
their
adoption,
regularly
nominates and supports certain of its

leaders and members as candidates for

public office.

Neither the Constitution nor R.A. No. 7941 prohibits

It is a national party when its

constituency
is
spread
over
the
geographical territory of at least a
majority of the regions. It is a regional
party when its constituency is spread
over the geographical territory of at least
a majority of the cities and provinces
comprising the region.

list system. On the contrary, the framers of the

(d) A sectoral party refers to an organized

group of citizens belonging to any of the
sectors enumerated in Section 5 hereof
whose principal advocacy pertains to the
special interests and concerns of their
sector,

reservation of the party-list system to the sectoral

(e) A sectoral organization refers to a

group of citizens or a coalition of groups
of citizens who share similar physical
attributes or characteristics, employment,
interests or concerns.

elections. Excluding the major political parties in party-

(f) A coalition refers to an aggrupation of

duly registered national, regional, sectoral
parties or organizations for political
and/or election purposes.
Congress, in enacting R.A. No. 7941, put the three-seat
cap to prevent any party from dominating the party-list
elections.

major political parties from participating in the partyConstitution clearly intended the major political parties
to participate in party-list elections through their
sectoral

wings. In

fact,

the members

of

the

Constitutional Commission voted down, 19-22, any

permanent sectoral seats, and in the alternative the
groups.[33] In defining a party that participates in partylist elections as either a political party or a sectoral
party, R.A. No. 7941 also clearly intended that major
political

parties

will

participate

in

the

party-list

list elections is manifestly against the Constitution, the

intent of the Constitutional Commission, and R.A. No.
7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of
major political parties from the party-list elections in
patent violation of the Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of
the

Constitutional

Commission

state

that

major

political parties are allowed to establish, or form

coalitions with, sectoral organizations for electoral or
political purposes. There should not be a problem if,

In case of a nominee of the youth sector,

he must at least be twenty-five (25) but
not more than thirty (30) years of age on
the day of the election. Any youth
sectoral representative who attains the
age of thirty (30) during his term shall be
allowed to continue until the expiration of
his term.

for example, the Liberal Party participates in the partylist election through the Kabataang Liberal ng Pilipinas
(KALIPI), its sectoral youth wing. The other major
political parties can thus organize, or affiliate with,
their chosen sector or sectors. To further illustrate, the
Nacionalista Party can establish a fisherfolk wing to
participate

in

fisherfolk wing

the

party-list

can

field

election,
its

and

this

fisherfolk

nominees. Kabalikat ng Malayang Pilipino (KAMPI) can

do the same for the urban poor.
The qualifications of party-list nominees are prescribed
in Section 9 of R.A. No. 7941:

Under Section 9 of R.A. No. 7941, it is not necessary

that the party-list organizations nominee wallow in
poverty, destitution and infirmity[34] as there is no
financial status required in the law. It is enough that
the

nominee

of

party/organization/coalition

the
belongs

marginalized and underrepresented sectors,

sectoral
to
[35]

the
that is,

if the nominee represents the fisherfolk, he or she

Qualifications of Party-List Nominees. No
person shall be nominated as party-list
representative unless he is a natural born
citizen of the Philippines, a registered
voter, a resident of the Philippines for a
period of not less than one (1) year
immediately preceding the day of the
elections, able to read and write, bona
fide member of the party or organization
which he seeks to represent for at least
ninety (90) days preceding the day of the
election, and is at least twenty-five (25)
years of age on the day of the election.

must be a fisherfolk, or if the nominee represents the

senior citizens, he or she must be a senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates
the filling-up of the entire 20% allocation of party-list
representatives

found

in

the

Constitution. The

Constitution, in paragraph 1, Section 5 of Article VI, left

the determination of the number of the members of
the House of Representatives to Congress: The House
of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed

by law, x x x. The 20% allocation of party-list

WHEREFORE, we PARTIALLY

representatives

petition. We SET

is

merely

ceiling;

party-list

ASIDE the

GRANT the
Resolution

of

the

representatives cannot be more than 20% of the

COMELEC dated 3 August 2007 in NBC No. 07-041 (PL)

members of the House of Representatives. However,

as well as the Resolution dated 9 July 2007 in NBC No.

we cannot allow the continued existence of a provision

07-60. We declare unconstitutional the two percent

in the law which will systematically prevent the

threshold in the distribution of additional party-list

constitutionally

party-list

seats. The allocation of additional seats under the

representatives from being filled. The three-seat cap,

Party-List System shall be in accordance with the

as a limitation to the number of seats that a qualified

procedure used in Table 3 of this Decision. Major

party-list organization may occupy, remains a valid

political parties are disallowed from participating in

statutory

party-list

allocated

device

that

prevents

20%

any

party

from

dominating the party-list elections. Seats for party-list

representatives shall thus be allocated in accordance
with the procedure used in Table 3 above.
However, by a vote of 8-7, the Court decided to
continue

the

ruling

in Veterans disallowing

major

political parties from participating in the party-list

elections, directly or indirectly. Those who voted to
continue disallowing major political parties from the
party-list elections joined Chief Justice Reynato S. Puno
in

his

separate

opinion. On

the

formula

to

allocate party-list seats, the Court is unanimous in

concurring with this ponencia.

elections. This

Decision

is

executory. No pronouncement as to costs.

immediately

G.R. No. 203766

April 2, 2013

ATONG PAGLAUM, INC., represented by its President, Mr.

Alan Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
The Cases
These cases constitute 54 Petitions for Certiorari and Petitions
for Certiorari and Prohibition1 filed by 52 party-list groups and
organizations assailing the Resolutions issued by the
Commission on Elections (COMELEC) disqualifying them from
participating in the 13 May 2013 party-list elections, either by
denial of their petitions for registration under the party-list system,
or cancellation of their registration and accreditation as party-list
organizations.
This Court resolved to consolidate the 54 petitions in the
Resolutions dated 13 November 2012,2 20 November 2012,3 27

November 2012,4 4 December 2012,5 11 December 2012,6 and 19

Inc. (ALA-EH)
February 2013.7
Resolution dated 27 November 201210
The Facts Pursuant to the provisions of Republic Act No. 7941
204435 12-057
1 Alliance
(R.A. No. 7941) and COMELEC Resolution Nos. 9366 and 9531,
(PLM)
Advocating
approximately 280 groups and organizations registered and
Autonomy Party
manifested their desire to participate in the 13 May 2013 party-list
(1AAAP)
elections.
G.R.
No.

SPP No.

Group

Grounds for Denial

A. Via the COMELEC En Bancs automatic review of the COMELEC Resolution dated 27 November 201211
Divisions resolutions approving registration of groups/organizations
204367 12-104 (PL) Akbay
Kalusugan
Resolution dated 23 November 20128
(AKIN), Inc.
1 204379 12-099
Alagad ng
- The "artists" sector is not
Resolution
dated 29 November 201212
(PLM)
Sining (ASIN)
considered marginalized
and
underrepresented;
204370 12-011 (PP) Ako An Bisaya
- Failure to prove track
(AAB)
record; and
- Failure of the nominees to
qualify under RA 7941 and
Ang Bagong Bayani.
Omnibus Resolution dated 27 November 20129
2

204455

12-041
(PLM)

Manila Teachers
Savings and
Loan
Association, Inc.
(Manila
Teachers)

- A non-stock savings and

loan association cannot be
considered marginalized and
underrepresented; and
- The first and second
nominees are not teachers by
Resolution dated 4 December 201213
profession.

204426

12-011
(PLM)

Association of
Local Athletics
Entrepreneurs
and Hobbyists,

204436
- Failure to show that
its
members belong to the
marginalized; and
- Failure of the nominees to

12-009
(PP),
12-165
(PLM)

Abyan Ilonggo
Party (AI)

qualify.

- Failure of the nominees to

qualify: although registering
as a regional political party,
two of the nominees are not
residents of the region; and
four of the five nominees do
not belong to the
marginalized and underrepresented.

- Failure of the group to show

that its nominees belong to
the urban poor sector.

- Failure to represent a
marginalized sector of
society, despite the formation
of a sectoral wing for the
benefit of farmers of Region
8;
- Constituency has district
representatives;
- Lack of track record in
representing peasants and
farmers; and
- Nominees are neither
farmers nor peasants.

- Failure to show that the

party represents a
marginalized and
underrepresented sector, as

the Province of Iloilo has

district representatives;
- Untruthful statements in the
memorandum; and
- Withdrawal of three of its
five nominees.

(KALIKASAN)

Resolution dated 4 December 201214

8

204485

12-175 (PL) Alliance of

Organizations,
Networks and Associations
of
the Philippines,
Inc. (ALONA)

- Failure to establish that the

group can represent 14
sectors; - The sectors of
homeowners
associations, entrepreneurs
and cooperatives are not
marginalized and
underrepresented;
and
Resolution
dated 14 November 201217
- The nominees do not belong
to the marginalized 204394
and
12-145 (PL) Association of
underrepresented.
Guard, Utility
Helper, Aider,
B. Via the COMELEC En Bancs review on motion for reconsideration
Rider, Driver/
of the COMELEC Divisions resolutions denying registration of groups
Domestic
and organizations
Helper,
15
Janitor, Agent
Resolution dated 7 November 2012
and
9 204139 12-127 (PL) Alab ng
- Failure to prove track
Nanny of the
Mamamahayag
record as an organization;
Philippines, Inc.
(ALAM)
- Failure to show that the
(GUARDJAN)
group actually represents the
Resolution dated 5 December 201218
marginalized and
underrepresented; and
204490 12-073
Pilipinas Para sa
- Failure to establish that the (PLM)
Pinoy (PPP)
group can represent all
sectors it seeks to represent.
Resolution dated 7 November 201216
1

204402

12-061 (PP) Kalikasan Party-List

- The group reflects an

advocacy for the

environment, and is not
representative of the
marginalized and
underrepresented;
- There is no proof that
majority of its members
belong to the marginalized
and underrepresented;
- The group represents
sectors with conflicting
interests; and
- The nominees do not belong
to the sector which the group
claims to represent.

- Failure to prove
membership base and track
record;
- Failure to present activities
that sufficiently benefited its
intended constituency; and
- The nominees do not belong
to any of the sectors which
the group seeks to represent.

- Failure to show that the

group represents a
marginalized and
underrepresented sector, as
Region 12 has district
representatives; and
- Failure to show a track

record of undertaking
203818programs for the welfare of
the sector the group seeks to
represent.

12-154
(PLM)
12-177
(PLM)

AKO Bicol
Political Party
(AKB)

In a Resolution dated 5 December 2012,19 the COMELEC En

Banc affirmed the COMELEC Second Divisions resolution to
grant Partido ng Bayan ng Bidas (PBB) registration and
accreditation as a political party in the National Capital Region.
However, PBB was denied participation in the 13 May 2013 partylist elections because PBB does not represent any "marginalized
and underrepresented" sector; PBB failed to apply for registration
as a party-list group; and PBB failed to establish its track record
as an organization that seeks to uplift the lives of the
"marginalized and underrepresented."20
Omnibus Resolution dated 11 October 201225
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP,
12-161 Atong Paglaum,
AKIN, AAB, AI, ALONA, ALAM, KALIKASAN, GUARDJAN, PPP,203766
(PLM)
Inc. (Atong
and PBB) were not able to secure a mandatory injunction from
Paglaum)
this Court. The COMELEC, on 7 January 2013 issued Resolution
21
No. 9604, and excluded the names of these 13 petitioners in the
printing of the official ballot for the 13 May 2013 party-list
elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC
En Banc scheduled summary evidentiary hearings to determine
whether the groups and organizations that filed manifestations of
intent to participate in the 13 May 2013 party-list elections have203981
12-187 Association for
continually complied with the requirements of R.A. No. 7941 and
(PLM)
Righteousness
Ang Bagong Bayani-OFW Labor Party v. COMELEC23 (Ang
Advocacy on
Bagong Bayani). The COMELEC disqualified the following groups
Leadership
and organizations from participating in the 13 May 2013 party-list
(ARAL)
elections:
G.R. No.

SPP
No.

Group

Resolution dated 10 October 201224

Grounds for Denial

204002

12-188

Alliance for

Retained registration and

accreditation as a political
party, but denied participation
in the May 2013 party-list
elections
- Failure to represent any
marginalized and
underrepresented sector;
- The Bicol region already
has representatives in
Congress; and
- The nominees are not
marginalized and
underrepresented.

Cancelled registration and

accreditation
- The nominees do not belong
to the sectors which the party
represents; and
- The party failed to file its
Statement of Contributions
and Expenditures for the
2010 Elections.
Cancelled registration and
accreditation
- Failure to comply, and for
violation of election laws;
- The nominees do not
represent the sectors which
the party represents; and
- There is doubt that the party
is organized for religious
purposes.
Cancelled registration and

(PLM)

204318

12-220
(PLM)

Rural Concerns
(ARC)

United
Movement
Against Drugs
Foundation
(UNIMAD)

accreditation
- Failure of the nominees to
qualify; and
- Failure of the party to prove
20426
that majority of its members
belong to the sectors it seeks
to represent.

to belong to the sector of

community volunteer
workers.
12-257
(PLM)

Blessed
Federation of
Farmers and
Fishermen
International,
Inc. (A
BLESSED
Party-List)

Cancelled registration and

accreditation
- The sectors of drug
counsellors and lecturers,
veterans and the youth, are
not marginalized and
underrepresented;
Resolution dated 16 October 201227
- Failure to establish track
record; and
203960
12-260 1st
- Failure of the nominees to
(PLM)
Consumers
qualify as representatives of
Alliance for
the youth and young urban
Rural Energy,
professionals.
Inc. (1-CARE)

Omnibus Resolution dated 16 October 201226

6

204100

12-196
(PLM)

1-Bro Philippine
Guardians
Brotherhood,
Inc. (1BRO-PGBI)

204122

12-223
(PLM)

1 Guardians
Nationalist
Philippines, Inc.
(1GANAP/
GUARDIANS)

Cancelled registration
- Failure to define the sector
it seeks to represent; and
- The nominees do not belong
to a marginalized and
underrepresented sector.
Resolution dated 16 October 201228
Cancelled registration
12-201 Association of
- The party is a military 203922
(PLM)
Philippine
fraternity;
Electric
- The sector of community
Cooperatives
volunteer workers is too
(APEC)
broad to allow for meaningful
representation; and
- The nominees do not appear

Cancelled registration
- Three of the seven
nominees do not belong to
the sector of farmers and
fishermen, the sector sought
to be represented; and
- None of the nominees are
registered voters of Region
XI, the region sought to be
represented.

Cancelled registration
- The sector of rural energy
consumers is not
marginalized and
underrepresented;
- The partys track record is
related to electric
cooperatives and not rural
energy consumers; and
- The nominees do not belong
to the sector of rural energy
consumers.

Cancelled registration and

accreditation
- Failure to represent a
marginalized and
underrepresented sector; and
- The nominees do not belong
to the sector that the party

claims to represent.

Resolution dated 23 October 201229

11 204174

12-232
(PLM)

Aangat Tayo
Party-List Party
( AT )

Cancelled registration and

accreditation
- The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sectors that the party
represents (women, elderly,
youth, urban poor); and 203936
- The nominees do not belong
to the marginalized sectors
that the party seeks to
represent.

farmers that the party seeks to

represent;
- Only four nominees were
submitted to the COMELEC;
and
- Failure to show meaningful
activities for its constituency.
12-248
(PLM)

Aksyon
Magsasaka-Partido
Tinig ng
Masa (AKMA-PTM)

Cancelled registration
- Failure to show that
majority of its members are
marginalized and
underrepresented;
- Failure to prove that four of
its nine nominees actually
belong to the farmers sector;
and
- Failure to show that five of
its nine nominees work on
uplifting the lives of the
members of the sector.

12-263
(PLM)

Kaagapay ng
Nagkakaisang
Agilang
Pilipinong
Magsasaka
(KAP)

Cancelled registration
- The Manifestation of Intent
and Certificate of Nomination
were not signed by an
appropriate officer of the
party;
- Failure to show track record
for the farmers and peasants
sector; and
- Failure to show that
nominees actually belong to
the sector, or that they have
undertaken meaningful
activities for the sector.

12-180
(PLM)

Adhikain at
Kilusan ng

Cancelled registration
- Failure to show that

Omnibus Resolution dated 24 October 201230

12 203976

12-288
(PLM)

Alliance for
Rural and
Agrarian
Reconstruction,
Inc. (ARARO)

Cancelled registration and

accreditation
- The interests of the peasant
and urban poor sectors that
the party represents differ;
- The nominees do not belong
to the sectors that the party
204126
seeks to represent;
- Failure to show that three of
the nominees are bona fide
party members; and
- Lack of a Board resolution
to participate in the party-list
elections.

Omnibus Resolution dated 24 October 201231

13 204240

12-279
(PLM)

Agri-Agra na
Reporma Para sa
Magsasaka ng
Pilipinas
Movement
(AGRI)

Cancelled registration
- The party ceased to exist for
more than a year immediately
after the May 2010 elections;
- The nominees do not belong
204364
to the sector of peasants and

Ordinaryong
Tao Para sa
Lupa, Pabahay,
Hanapbuhay at
Kaunlaran
(AKO-BAHAY)

nominees actually belong 203958

to
the sector, or that they have
undertaken meaningful
activities for the sector.

12-015
(PLM)

Kapatiran ng
mga Nakulong
na Walang Sala,
Inc. (KAKUSA)

17 204141

12-229
(PLM)

The True
Marcos Loyalist
(for God,
Country and
People)
Association of
the Philippines,
Inc. (BANTAY)

Cancelled registration
- Failure to show that
majority of its members are
marginalized and
underrepresented; and
- Failure to prove that two of
its nominees actually belong
to the marginalized and
underrepresented.

18 204408

12-217
(PLM)

Pilipino
Association for
Country Urban
Poor Youth
Advancement
and Welfare
( PA C YAW )

Cancelled registration
- Change of sector (from
urban poor youth to urban
poor) necessitates a new
application;
- Failure to show track record
for the marginalized and
underrepresented;
Resolution dated 30 October 201232
- Failure to prove that
majority of its members and
204428
12-256 Ang Galing
officers are from the urban
(PLM)
Pinoy (AG)
poor sector; and
- The nominees are not
members of the urban poor
sector.

19 204153

12-277
(PLM)

Pasang Masda
Nationwide
Party (PASANG
MASDA)

Cancelled registration
- The party represents drivers
and operators, who may have
conflicting interests; and
- Nominees are either Resolution dated 7 November 201233
operators or former operators.

Cancelled registration
- Failure to prove that
na Walang Sala,
Inc. (KAKUSA)
majority of its officers and
members belong to the
marginalized and
underrepresented;
- The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sector that the party
represents (persons
imprisoned without proof of
guilt beyond reasonable
doubt);
- Failure to show track record
for the marginalized and
underrepresented; and
- The nominees did not
appear to be marginalized and
underrepresented.

Cancelled registration and

accreditation
- Failure to attend the
summary hearing;
- Failure to show track record
for the marginalized and
underrepresented; and
- The nominees did not
appear to be marginalized and
underrepresented.

22 204094

12-185
(PLM)

Alliance for
Nationalism and
Democracy
(ANAD)

Cancelled registration Omnibus

and
Resolution dated 7 November 201234
accreditation
- Failure to represent an
identifiable marginalized and
underrepresented sector;
- Only three nominees were
submitted to the COMELEC;
- The nominees do not
belong to the marginalized
and underrepresented; and
- Failure to submit its
Statement of Contribution
and Expenditures for the
2007 Elections.

23 204239

24 204236

25 204341

12-060
(PLM)

12-254
(PLM)

12-269
(PLM)

Green Force for

the Environment
Sons and
Daughters of
Mother Earth
(GREENFORCE)

Cancelled registration and

accreditation
Resolution dated 7 November 201235
- The party is an advocacy
group and does not represent
204358
12-204 Alliance of
the marginalized and
(PLM)
Advocates in
underrepresented;
Mining
- Failure to comply with the
Advancement
track record requirement; and
for National
- The nominees are not
Progress
marginalized citizens.
(AAMA)

Firm 24-K
Association, Inc.
(FIRM 24-K)

Cancelled registration and

accreditation
Resolution dated 7 November 201236
- The nominees do not
204359
12-272 Social
belong to the sector that the
(PLM)
Movement for
party seeks to represent
Active Reform
(urban poor and peasants of
and
the National Capital Region);
Transparency
- Only two of its nominees
(SMART)
reside in the National Capital
Region; and
- Failure to comply with the
track record requirement.

Action League
of Indigenous
Masses (ALIM)

Cancelled registration and

accreditation
Resolution
dated 7 November 201237
- Failure to establish that
its
nominees are members of the
204238
12-173 Alliance of
indigenous people in the
(PLM)
Bicolnon Party
Mindanao and Cordilleras
(ABP)
sector that the party seeks to
represent;
- Only two of the partys
nominees reside in the
Mindanao and Cordilleras;
and
- Three of the nominees do
not appear to belong to the

marginalized.

Cancelled registration
- The sector it represents is a
specifically defined group
which may not be allowed
registration under the party-list system; and
- Failure to establish that the
nominees actually belong to
the sector.

Cancelled registration
- The nominees are
disqualified from
representing the sectors that
the party represents;
- Failure to comply with the
track record requirement; and
- There is doubt as to whether
majority of its members are
marginalized and
underrepresented.

Cancelled registration and

accreditation
- Defective registration and
accreditation dating back to
2010;
- Failure to represent any
sector; and
- Failure to establish that the
nominees are employed in the construction
industry, the
sector it claims to represent.

Resolution dated 7 November 201238

29 204323

12-210
(PLM)

Bayani Party
List (BAYANI)

Cancelled registration and

accreditation
Resolution dated 7 November 201241
- Failure to prove a track
12-202 Philippine
record of trying to uplift the204216
(PLM)
Coconut
marginalized and
Producers
underrepresented sector of
Federation, Inc.
professionals; and
(COCOFED)
- One nominee was declared
unqualified to represent the
sector of professionals.

Resolution dated 7 November 201239

30 204321

12-252
(PLM)

Ang Agrikultura
Natin Isulong
(AANI)

Cancelled registration and

accreditation
- Failure to establish a track
record of enhancing the lives
of the marginalized and
Resolution dated 7 November 201242
underrepresented farmers
204220
12-238 Abang Lingkod
which it claims to represent;
(PLM)
Party-List
and
(ABANG
- More than a majority of the
LINGKOD)
partys nominees do not
belong to the farmers sector.

Resolution dated 7 November 201240

31 204125

12-292
(PLM)

Agapay ng
Indigenous
Peoples Rights
Alliance, Inc.
(A-IPRA)

Cancelled registration and

accreditation
- Failure to prove that its five
nominees are members of the
indigenous people sector;
- Failure to prove that its five
nominees actively
participated in the
undertakings of the party; and
- Failure to prove that Resolution
its five nominees
datedare
14 November 201243

bona fide
members.

Cancelled registration and

accreditation
- The party is affiliated with
private and government
agencies and is not
marginalized;
- The party is assisted by the
government in various
projects; and
- The nominees are not
members of the marginalized
sector of coconut farmers and
producers.

Cancelled registration
- Failure to establish a track
record of continuously
representing the peasant
farmers sector;
- Failure to show that its
members actually belong to
the peasant farmers sector;
and
- Failure to show that its
nominees are marginalized
and underrepresented, have
actively participated in
programs for the
advancement of farmers, and
adhere to its advocacies.

34 204158

12-158
(PLM)

Action
Brotherhood for Active
Dreamers, Inc.
(ABROAD)

Cancelled registration Resolution

and
dated 28 November 201244
accreditation - Failure to show that the
party is actually able to
represent all of the sectors it
claims to represent;
- Failure to show a complete
track record of its activities
since its registration; and
- The nominees are not part
of any of the sectors which
the party seeks to represent.

35 204374

12-228
(PLM)

Binhi-Partido ng
mga Magsasaka
Para sa mga
Magsasaka
(BINHI)

Resolution dated 28 November 201245

36 204356

12-136
(PLM)

Butil Farmers
Party (BUTIL)

Cancelled registration and

accreditation
47
- The party receives Resolution dated 4 December 2012
assistance from the
204410
12-198 1-United
government through the
(PLM)
Transport
Department of Agriculture;
Koalisyon (1-UTAK)
and
- Failure to prove that the
group is marginalized and
underrepresented.

12-194
(PLM)

1st
Kabalikat ng
Bayan
Ginhawang
Sangkatauhan
(1st
KABAGIS)

Cancelled accreditation
- The party represents drivers
and operators, who may have
conflicting interests; and
- The partys nominees do not
belong to any marginalized
and underrepresented sector.

Resolution dated 4 December 201248

Cancelled registration and204421,
accreditation
204425
- Failure to establish that the
agriculture and cooperative
sectors are marginalized and
underrepresented; and
- The partys nominees
neither appear to belong to
the sectors they seek to
represent, nor to have
actively participated in the
undertakings of the party.

Resolution dated 3 December 201246

37 204486

seeks to represent.

Cancelled registration and

accreditation
- Declaration of untruthful
statements;
- Failure to exist for at least
one year; and
- None of its nominees
belong to the labor,
fisherfolk, and urban poor
indigenous cultural
communities sectors which it

12-157
(PLM),
12-191
(PLM)

Coalition of
Senior Citizens
in the
Philippines, Inc.
(SENIOR
CITIZENS)

Cancelled registration
- The party violated election
laws because its nominees
had a term-sharing
agreement.

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC,

UNIMAD, 1BRO-PGBI, 1GANAP/GUARDIANS, A BLESSED
Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-PTM, KAP,
AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA,
AG, ANAD, GREENFORCE, FIRM 24-K, ALIM, AAMA, SMART,
ABP, BAYANI, AANI, A-IPRA, COCOFED, ABANG LINGKOD,
ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR
CITIZENS) were able to secure a mandatory injunction from this
Court, directing the COMELEC to include the names of these 39
petitioners in the printing of the official ballot for the 13 May 2013
party-list elections.
Petitioners prayed for the issuance of a temporary restraining
order and/or writ of preliminary injunction. This Court issued
Status Quo Ante Orders in all petitions. This Decision governs
only the 54 consolidated petitions that were granted Status Quo
Ante Orders, namely:

G.R. No.

SPP No.

Group

Resolution dated 13 November 2012

203818-19

12-229
(PLM)

The True Marcos Loyalist (for God, Country

and People) Association of the Philippines, Inc.
(BANTAY)

12-279
(PLM)

Agri-Agra na Reporma Para sa Magsasaka ng

Pilipinas Movement (AGRI)

12-202
(PLM)

Philippine Coconut Producers Federation, Inc.

(COCOFED)

12-158
(PLM)

Action Brotherhood for Active Dreamer, Inc.

(ABROAD)

12-154
(PLM)
12-177
(PLM)

AKO Bicol Political Party (AKB)

12-187
(PLM)

Association for Righteousness Advocacy on

Leadership (ARAL)

12-188
(PLM)

Alliance for Rural Concerns (ARC)

203922

12-201
(PLM)

Association of Philippine Electric Cooperatives

(APEC)

12-223
(PLM)

1 Guardians Nationalist Philippines, Inc.

(1GANAP/GUARDIANS)

203960

12-260
(PLM)

1st
Consumers Alliance for Rural Energy, Inc.
(1-CARE)

12-161
(PLM)

Atong Paglaum, Inc. (Atong Paglaum)

203936

12-248
(PLM)

Aksyon Magsasaka-Partido Tinig ng Masa

(AKMA-PTM)

12-220
(PLM)

United Movement Against Drugs Foundation

(UNIMAD)

203958

12-015
(PLM)

Kapatiran ng mga Nakulong na Walang Sala,

Inc. (KAKUSA)

12-257
(PLM)

Blessed Federation of Farmers and Fishermen

International, Inc. (A BLESSED Party-List)

12-288
(PLM)

Alliance for Rural and Agrarian Reconstruction,

Inc. (ARARO)

12-232
(PLM)

Aangat Tayo Party-List Party (AT)

203976

12-263
(PLM)

Kaagapay ng Nagkakaisang Agilang Pilipinong

Magsasaka (KAP)

203981
204002

Resolutions dated 4 December 2012

Resolution dated 20 November 2012

204094

12-185
(PLM)

Alliance for Nationalism and Democracy

(ANAD)

12-180
(PLM)

204125

12-292
(PLM)

Agapay ng Indigenous Peoples Rights Alliance,

Inc. (A-IPRA)

Adhikain at Kilusan ng Ordinaryong Tao Para sa

Lupa, Pabahay, Hanapbuhay at Kaunlaran
(AKO-BAHAY)

12-127 (PL)

Alab ng Mamamahayag (ALAM)

12-196
(PLM)

1-Bro Philippine Guardians Brotherhood, Inc.

(1BRO-PGBI)

12-238
(PLM)

Abang Lingkod Party-List (ABANG

LINGKOD)

12-254

Firm 24-K Association, Inc. (FIRM 24-K)

204100

Resolution dated 27 November 2012

(PLM)
204238

12-099
(PLM)

Alagad ng Sining (ASIN)

12-104 (PL)

Akbay Kalusugan (AKIN)

12-173
(PLM)

Alliance of Bicolnon Party (ABP)

204239

12-060
(PLM)

Green Force for the Environment Sons and

Daughters of Mother Earth (GREENFORCE)

12-011
(PLM)

Association of Local Athletics Entrepreneurs

and Hobbyists, Inc. (ALA-EH)

204321

12-252
(PLM)

Ang Agrikultura Natin Isulong (AANI)

12-041
(PLM)

Manila Teachers Savings and Loan Association,

Inc. (Manila Teachers)

204323

12-210
(PLM)

Bayani Party List (BAYANI)

12-228
(PLM)

Binhi-Partido ng mga Magsasaka Para sa mga

Magsasaka (BINHI)

204341

12-269
(PLM)

Action League of Indigenous Masses (ALIM)

12-011 (PP)

Ako An Bisaya (AAB)

204358

12-204
(PLM)

Alliance of Advocates in Mining Advancement

for National Progress (AAMA)

12-057
(PLM)

1 Alliance Advocating Autonomy Party

(1AAAP)

204359

12-272
(PLM)

Social Movement for Active Reform and

Transparency (SMART)

12-194
(PLM)

1st Kabalikat ng Bayan Ginhawang

Sangkatauhan (1st KABAGIS)

12-136
(PLM)

Butil Farmers Party (BUTIL)

12-198
(PLM)

1-United Transport Koalisyon (1-UTAK)

204356

12-157
(PLM)
12-191
(PLM)

Coalition of Senior Citizens in the Philippines,

Inc. (SENIOR CITIZENS)

12-009 (PP),
12-165
(PLM)

Abyan Ilonggo Party (AI)

12-175 (PL)

Alliance of Organizations, Networks and

Associations of the Philippines, Inc. (ALONA)

11-002

Partido ng Bayan ng Bida (PBB)

Resolution dated 11 December 2012

204402

12-061 (PL)

Kalikasan Party-List (KALIKASAN)

204394

12-145 (PL)

Association of Guard, Utility Helper, Aider,

Rider, Driver/Domestic Helper, Janitor, Agent
and Nanny of the Philippines, Inc.
(GUARDJAN)

204408

12-217
(PLM)

Pilipino Association for Country Urban Poor

Youth Advancement and Welfare (PACYAW)

204428

12-256
(PLM)

Ang Galing Pinoy (AG)

12-073
(PLM)

Pilipinas Para sa Pinoy (PPP)

204490

Resolution dated 11 December 2012

12-277
(PLM)

Pasang Masda Nationwide Party (PASANG

MASDA)

The Issues
We rule upon two issues: first, whether the COMELEC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in disqualifying petitioners from participating in the 13
May 2013 party-list elections, either by denial of their new
petitions for registration under the party-list system, or by
cancellation of their existing registration and accreditation as
party-list organizations; and second, whether the criteria for
participating in the party-list system laid down in Ang Bagong
Bayani and Barangay Association for National Advancement and
Transparency v. Commission on Elections49 (BANAT) should be
applied by the COMELEC in the coming 13 May 2013 party-list
elections.
The Courts Ruling
We hold that the COMELEC did not commit grave abuse of
discretion in following prevailing decisions of this Court in
disqualifying petitioners from participating in the coming 13 May
2013 party-list elections. However, since the Court adopts in this
Decision new parameters in the qualification of national, regional,
and sectoral parties under the party-list system, thereby
abandoning the rulings in the decisions applied by the COMELEC
in disqualifying petitioners, we remand to the COMELEC all the
present petitions for the COMELEC to determine who are
qualified to register under the party-list system, and to participate
in the coming 13 May 2013 party-list elections, under the new
parameters prescribed in this Decision.

in the House of Representatives: one for his or her legislative

district, and another for his or her party-list group or organization
of choice. The 1987 Constitution provides:
Section 5, Article VI
(1) The House of Representatives shall be composed of
not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who,
as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral
parties or organizations.
(2) The party-list representatives shall constitute twenty
per centum of the total number of representatives
including those under the party list. For three consecutive
terms after the ratification of this Constitution, one-half of
the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as
may be provided by law, except the religious sector.
Sections 7 and 8, Article IX-C

The Party-List System

Sec. 7. No votes cast in favor of a political party, organization, or

coalition shall be valid, except for those registered under the
party-list system as provided in this Constitution.

The 1987 Constitution provides the basis for the party-list system
of representation. Simply put, the party-list system is intended to
democratize political power by giving political parties that cannot
win in legislative district elections a chance to win seats in the
House of Representatives.50 The voter elects two representatives

Sec. 8. Political parties, or organizations or coalitions registered

under the party-list system, shall not be represented in the voters
registration boards, boards of election inspectors, boards of

canvassers, or other similar bodies. However, they shall be

entitled to appoint poll watchers in accordance with law.

farmer. And so, it is up to the discretion of the person to say "I am

a farmer" so he would be included in that sector.

Commissioner Christian S. Monsod, the main sponsor of the

party-list system, stressed that "the party-list system is not
synonymous with that of the sectoral representation."51 The
constitutional provisions on the party-list system should be read in
light of the following discussion among its framers:

The third problem is that when we go into a reserved seat system

of sectoral representation in the Assembly, we are, in effect,
giving some people two votes and other people one vote. We
sought to avoid these problems by presenting a party list system.
Under the party list system, there are no reserved seats for
sectors. Let us say, laborers and farmers can form a sectoral
party or a sectoral organization that will then register and present
candidates of their party. How do the mechanics go? Essentially,
under the party list system, every voter has two votes, so there is
no discrimination. First, he will vote for the representative of his
legislative district. That is one vote. In that same ballot, he will be
asked: What party or organization or coalition do you wish to be
represented in the Assembly? And here will be attached a list of
the parties, organizations or coalitions that have been registered
with the COMELEC and are entitled to be put in that list. This can
be a regional party, a sectoral party, a national party, UNIDO,
Magsasaka or a regional party in Mindanao. One need not be a
farmer to say that he wants the farmers' party to be represented
in the Assembly. Any citizen can vote for any party. At the end of
the day, the COMELEC will then tabulate the votes that had been
garnered by each party or each organization one does not
have to be a political party and register in order to participate as a
party and count the votes and from there derive the
percentage of the votes that had been cast in favor of a party,
organization or coalition.

MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the
proposal for the party list system is not synonymous with that of
the sectoral representation. Precisely, the party list system seeks
to avoid the dilemma of choice of sectors and who constitute the
members of the sectors. In making the proposal on the party list
system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats.
In effect, a sectoral representation in the Assembly would mean
that certain sectors would have reserved seats; that they will
choose among themselves who would sit in those reserved seats.
And then, we have the problem of which sector because as we
will notice in Proclamation No. 9, the sectors cited were the
farmers, fishermen, workers, students, professionals, business,
military, academic, ethnic and other similar groups. So these are
the nine sectors that were identified here as "sectoral
representatives" to be represented in this Commission. The
problem we had in trying to approach sectoral representation in
the Assembly was whether to stop at these nine sectors or
include other sectors. And we went through the exercise in a
caucus of which sector should be included which went up to 14
sectors. And as we all know, the longer we make our
enumeration, the more limiting the law become because when we
make an enumeration we exclude those who are not in the
enumeration. Second, we had the problem of who comprise the
farmers. Let us just say the farmers and the laborers. These
days, there are many citizens who are called "hyphenated
citizens." A doctor may be a farmer; a lawyer may also be a

When such parties register with the COMELEC, we are assuming

that 50 of the 250 seats will be for the party list system. So, we
have a limit of 30 percent of 50. That means that the maximum
that any party can get out of these 50 seats is 15. When the
parties register they then submit a list of 15 names. They have to
submit these names because these nominees have to meet the
minimum qualifications of a Member of the National Assembly. At
the end of the day, when the votes are tabulated, one gets the
percentages. Let us say, UNIDO gets 10 percent or 15 percent of

the votes; KMU gets 5 percent; a womens party gets 2 1/2

percent and anybody who has at least 2 1/2 percent of the vote
qualifies and the 50 seats are apportioned among all of these
parties who get at least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has
a constituency of, say, 500,000 nationwide gets a seat in the
National Assembly. What is the justification for that? When we
allocate legislative districts, we are saying that any district that
has 200,000 votes gets a seat. There is no reason why a group
that has a national constituency, even if it is a sectoral or special
interest group, should not have a voice in the National Assembly.
It also means that, let us say, there are three or four labor groups,
they all register as a party or as a group. If each of them gets only
one percent or five of them get one percent, they are not entitled
to any representative. So, they will begin to think that if they really
have a common interest, they should band together, form a
coalition and get five percent of the vote and, therefore, have two
seats in the Assembly. Those are the dynamics of a party list
system.
We feel that this approach gets around the mechanics of sectoral
representation while at the same time making sure that those who
really have a national constituency or sectoral constituency will
get a chance to have a seat in the National Assembly. These
sectors or these groups may not have the constituency to win a
seat on a legislative district basis. They may not be able to win a
seat on a district basis but surely, they will have votes on a
nationwide basis.

The purpose of this is to open the system. In the past elections,

we found out that there were certain groups or parties that, if we
count their votes nationwide; have about 1,000,000 or 1,500,000
votes. But they were always third place or fourth place in each of
the districts. So, they have no voice in the Assembly. But this way,
they would have five or six representatives in the Assembly even
if they would not win individually in legislative districts. So, that is
essentially the mechanics, the purpose and objectives of the
party list system.
BISHOP BACANI: Madam President, am I right in interpreting
that when we speak now of party list system though we refer to
sectors, we would be referring to sectoral party list rather than
sectors and party list?
MR. MONSOD: As a matter of fact, if this body accepts the party
list system, we do not even have to mention sectors because the
sectors would be included in the party list system. They can be
sectoral parties within the party list system.
xxxx
MR. MONSOD. Madam President, I just want to say that we
suggested or proposed the party list system because we wanted
to open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system, and
we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the
number of representatives from any single party that can sit
within the 50 allocated under the party list system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198
seats is not limited to political parties. My question is this:
Are we going to classify for example Christian Democrats
and Social Democrats as political parties? Can they run

under the party list concept or must they be under the

district legislation side of it only?

election if they can prove that they are also organized along
sectoral lines.

MR. VILLACORTA. In reply to that query, I think these parties

that the Commissioner mentioned can field candidates for
the Senate as well as for the House of Representatives.
Likewise, they can also field sectoral candidates for the 20
percent or 30 percent, whichever is adopted, of the seats that
we are allocating under the party list system.

MR. MONSOD. What the Commissioner is saying is that all

political parties can participate because it is precisely the
contention of political parties that they represent the broad base
of citizens and that all sectors are represented in them. Would the
Commissioner agree?

MR. MONSOD. In other words, the Christian Democrats can

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

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang

UNIDO na isang political party, it will dominate the party list at
mawawalang saysay din yung sector. Lalamunin mismo ng
political parties ang party list system. Gusto ko lamang bigyan ng
diin ang "reserve." Hindi ito reserve seat sa marginalized sectors.
Kung titingnan natin itong 198 seats, reserved din ito sa political
parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run
there. But my question to Commissioner Villacorta and probably
also to Commissioner Tadeo is that under this system, would
UNIDO be banned from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral
candidates. On that condition alone, UNIDO may be allowed
to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he
shares that answer?
MR. TADEO. The same.

MR. MONSOD. But UNIDO can field candidates under the party
list system and say Juan dela Cruz is a farmer. Who would pass
on whether he is a farmer or not?

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral

lines.

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang

linawin ito. Political parties, particularly minority political
parties, are not prohibited to participate in the party list

MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng

UNIDO ay hindi talagang labor leader or isang laborer?
Halimbawa, abogado ito.

MR. TADEO: Iyong mechanics.

MR. MONSOD: Hindi po mechanics iyon because we are trying
to solve an inherent problem of sectoral representation. My
question is: Suppose UNIDO fields a labor leader, would he
qualify?
MR. TADEO: The COMELEC may look into the truth of
whether or not a political party is really organized along a
specific sectoral line. If such is verified or confirmed, the
political party may submit a list of individuals who are
actually members of such sectors. The lists are to be
published to give individuals or organizations belonging to
such sector the chance to present evidence contradicting
claims of membership in the said sector or to question the
claims of the existence of such sectoral organizations or
parties. This proceeding shall be conducted by the
COMELEC and shall be summary in character. In other
words, COMELEC decisions on this matter are final and
unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the
party-list system to include not only sectoral parties but also nonsectoral parties. The framers intended the sectoral parties to
constitute a part, but not the entirety, of the party-list system. As
explained by Commissioner Wilfredo Villacorta, political
parties can participate in the party-list system "For as long
as they field candidates who come from the different
marginalized sectors that we shall designate in this
Constitution."53
In fact, the framers voted down, 19-22, a proposal to reserve
permanent seats to sectoral parties in the House of
Representatives, or alternatively, to reserve the party-list system
exclusively to sectoral parties. As clearly explained by Justice
Jose C. Vitug in his Dissenting Opinion in Ang Bagong Bayani:

The draft provisions on what was to become Article VI, Section 5,

subsection (2), of the 1987 Constitution took off from two staunch
positions the first headed by Commissioner Villacorta,
advocating that of the 20 per centum of the total seats in
Congress to be allocated to party-list representatives half were to
be reserved to appointees from the marginalized and
underrepresented sectors. The proposal was opposed by some
Commissioners. Mr. Monsod expressed the difficulty in delimiting
the sectors that needed representation. He was of the view that
reserving seats for the marginalized and underrepresented
sectors would stunt their development into full-pledged parties
equipped with electoral machinery potent enough to further the
sectoral interests to be represented. The Villacorta group, on the
other hand, was apprehensive that pitting the unorganized and
less-moneyed sectoral groups in an electoral contest would be
like placing babes in the lion's den, so to speak, with the bigger
and more established political parties ultimately gobbling them
up. R.A. 7941 recognized this concern when it banned the first
five major political parties on the basis of party representation in
the House of Representatives from participating in the party-list
system for the first party-list elections held in 1998 (and to be
automatically lifted starting with the 2001 elections). The
advocates for permanent seats for sectoral representatives made
an effort towards a compromise that the party-list system be
open only to underrepresented and marginalized sectors. This
proposal was further whittled down by allocating only half of the
seats under the party-list system to candidates from the sectors
which would garner the required number of votes. The majority
was unyielding. Voting 19-22, the proposal for permanent seats,
and in the alternative the reservation of the party-list system to
the sectoral groups, was voted down. The only concession the
Villacorta group was able to muster was an assurance of
reserved seats for selected sectors for three consecutive terms
after the enactment of the 1987 Constitution, by which time they
would be expected to gather and solidify their electoral base and
brace themselves in the multi-party electoral contest with the
more veteran political groups.54(Emphasis supplied)

Thus, in the end, the proposal to give permanent reserved seats

to certain sectors was outvoted. Instead, the reservation of seats
to sectoral representatives was only allowed for the first three
consecutive terms.55 There can be no doubt whatsoever that the
framers of the 1987 Constitution expressly rejected the proposal
to make the party-list system exclusively for sectoral parties only,
and that they clearly intended the party-list system to include both
sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral
parties is that they cannot expect to win in legislative district
elections but they can garner, in nationwide elections, at least the
same number of votes that winning candidates can garner in
legislative district elections. The party-list system will be the entry
point to membership in the House of Representatives for both
these non-traditional parties that could not compete in legislative
district elections.
The indisputable intent of the framers of the 1987 Constitution to
include in the party-list system both sectoral and non-sectoral
parties is clearly written in Section 5(1), Article VI of the
Constitution, which states:
Section 5. (1) The House of Representative shall be composed of
not more that two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected through
a party-list system of registered national, regional, and
sectoral parties or organizations. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that
there shall be "a party-list system of registered national,
regional, and sectoral parties or organizations." The commas
after the words "national," and "regional," separate national and
regional parties from sectoral parties. Had the framers of the

1987 Constitution intended national and regional parties to be at

the same time sectoral, they would have stated "national and
regional sectoral parties." They did not, precisely because it was
never their intention to make the party-list system exclusively
sectoral.
What the framers intended, and what they expressly wrote in
Section 5(1), could not be any clearer: the party-list system is
composed of three different groups, and the sectoral parties
belong to only one of the three groups. The text of Section 5(1)
leaves no room for any doubt that national and regional parties
are separate from sectoral parties.
Thus, the party-list system is composed of three different
groups: (1) national parties or organizations; (2) regional parties
or organizations; and (3) sectoral parties or organizations.
National and regional parties or organizations are different from
sectoral parties or organizations. National and regional parties or
organizations need not be organized along sectoral lines and
need not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution
mandates that, during the first three consecutive terms of
Congress after the ratification of the 1987 Constitution, "one-half
of the seats allocated to party-list representatives shall be filled,
as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women,
youth, and such other sectors as may be provided by law, except
the religious sector." This provision clearly shows again that the
party-list system is not exclusively for sectoral parties for two
obvious reasons.
First, the other one-half of the seats allocated to party-list
representatives would naturally be open to non-sectoral party-list
representatives, clearly negating the idea that the party-list
system is exclusively for sectoral parties representing the
"marginalized and underrepresented." Second, the reservation of
one-half of the party-list seats to sectoral parties applies only for

the first "three consecutive terms after the ratification of this

Constitution," clearly making the party-list system fully open after
the end of the first three congressional terms. This means that,
after this period, there will be no seats reserved for any class or
type of party that qualifies under the three groups constituting the
party-list system.
Hence, the clear intent, express wording, and party-list
structure ordained in Section 5(1) and (2), Article VI of the
1987 Constitution cannot be disputed: the party-list system
is not for sectoral parties only, but also for non-sectoral
parties.
Republic Act No. 7941 or the Party-List System Act, which is the
law that implements the party-list system prescribed in the
Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a
mechanism of proportional representation in the election of
representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does
not participate in the party-list system.
(b) A party means either a political party or a sectoral
party or a coalition of parties.
(c) A political party refers to an organized group of
citizens advocating an ideology or platform,
principles and policies for the general conduct of
government and which, as the most immediate means
of securing their adoption, regularly nominates and
supports certain of its leaders and members as
candidates for public office.

It is a national party when its constituency is spread over

the geographical territory of at least a majority of the
regions. It is a regional party when its constituency is
spread over the geographical territory of at least a
majority of the cities and provinces comprising the region.
(d) A sectoral party refers to an organized group of
citizens belonging to any of the sectors enumerated
in Section 5 hereof whose principal advocacy
pertains to the special interest and concerns of their
sector.
(e) A sectoral organization refers to a group of citizens or
a coalition of groups of citizens who share similar physical
attributes or characteristics, employment, interests or
concerns.
(f) A coalition refers to an aggrupation of duly registered
national, regional, sectoral parties or organizations for
political and/or election purposes. (Emphasis supplied)
Section 3(a) of R.A. No. 7941 defines a "party" as "either a
political party or a sectoral party or a coalition of parties."
Clearly, a political party is different from a sectoral party. Section
3(c) of R.A. No. 7941 further provides that a "political
party refers to an organized group of citizens advocating an
ideology or platform, principles and policies for the general
conduct of government." On the other hand, Section 3(d) of
R.A. No. 7941 provides that a "sectoral party refers to an
organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy
pertains to the special interest and concerns of their
sector." R.A. No. 7941 provides different definitions for a political
and a sectoral party. Obviously, they are separate and distinct
from each other.

R.A. No. 7941 does not require national and regional parties
or organizations to represent the "marginalized and
underrepresented" sectors. To require all national and regional
parties under the party-list system to represent the "marginalized
and underrepresented" is to deprive and exclude, by judicial fiat,
ideology-based and cause-oriented parties from the party-list
system. How will these ideology-based and cause-oriented
parties, who cannot win in legislative district elections, participate
in the electoral process if they are excluded from the party-list
system? To exclude them from the party-list system is to prevent
them from joining the parliamentary struggle, leaving as their only
option the armed struggle. To exclude them from the party-list
system is, apart from being obviously senseless, patently contrary
to the clear intent and express wording of the 1987 Constitution
and R.A. No. 7941.
Under the party-list system, an ideology-based or cause-oriented
political party is clearly different from a sectoral party. A political
party need not be organized as a sectoral party and need not
represent any particular sector. There is no requirement in R.A.
No. 7941 that a national or regional political party must represent
a "marginalized and underrepresented" sector. It is sufficient that
the political party consists of citizens who advocate the same
ideology or platform, or the same governance principles and
policies, regardless of their economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include
labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals."56The sectors mentioned
in Section 5 are not all necessarily "marginalized and
underrepresented." For sure, "professionals" are not by definition
"marginalized and underrepresented," not even the elderly,
women, and the youth. However, professionals, the elderly,
women, and the youth may "lack well-defined political
constituencies," and can thus organize themselves into sectoral
parties in advocacy of the special interests and concerns of their
respective sectors.

Section 6 of R.A. No. 7941 provides another compelling reason

for holding that the law does not require national or regional
parties, as well as certain sectoral parties in Section 5 of R.A. No.
7941, to represent the "marginalized and underrepresented."
Section 6 provides the grounds for the COMELEC to refuse or
cancel the registration of parties or organizations after due notice
and hearing.
Section 6. Refusal and/or Cancellation of Registration. The
COMELEC may, motu proprio or upon verified complaint of any
interested party, refuse or cancel, after due notice and hearing,
the registration of any national, regional or sectoral party,
organization or coalition on any of the following grounds:
(1) It is a religious sect or denomination, organization or
association organized for religious purposes;
(2) It advocates violence or unlawful means to seek its
goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government,
foreign political party, foundation, organization, whether
directly or through any of its officers or members or
indirectly through third parties for partisan election
purposes;
(5) It violates or fails to comply with laws, rules or
regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding
elections or fails to obtain at least two per centum (2%) of

the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has
registered.
None of the 8 grounds to refuse or cancel registration refers to
non-representation of the "marginalized and underrepresented."
The phrase "marginalized and underrepresented" appears
only once in R.A. No. 7941, in Section 2 on Declaration of
Policy.57 Section 2 seeks "to promote proportional representation
in the election of representatives to the House of Representatives
through the party-list system," which will enable Filipinos
belonging to the"marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political
constituencies," to become members of the House of
Representatives. While the policy declaration in Section 2 of R.A.
No. 7941 broadly refers to "marginalized and underrepresented
sectors, organizations and parties," the specific implementing
provisions of R.A. No. 7941 do not define or require that the
sectors, organizations or parties must be "marginalized and
underrepresented." On the contrary, to even interpret that all the
sectors mentioned in Section 5 are "marginalized and
underrepresented" would lead to absurdities.
How then should we harmonize the broad policy declaration in
Section 2 of R.A. No. 7941 with its specific implementing
provisions, bearing in mind the applicable provisions of the 1987
Constitution on the matter?
The phrase "marginalized and underrepresented" should refer
only to the sectors in Section 5 that are, by their nature,
economically "marginalized and underrepresented." These
sectors are: labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, overseas workers,
and other similar sectors. For these sectors, a majority of the
members of the sectoral party must belong to the
"marginalized and underrepresented." The nominees of the
sectoral party either must belong to the sector, or must have

a track record of advocacy for the sector

represented. Belonging to the "marginalized and
underrepresented" sector does not mean one must "wallow in
poverty, destitution or infirmity." It is sufficient that one, or his or
her sector, is below the middle class. More specifically, the
economically "marginalized and underrepresented" are those who
fall in the low income group as classified by the National
Statistical Coordination Board.58
The recognition that national and regional parties, as well as
sectoral parties of professionals, the elderly, women and the
youth, need not be "marginalized and underrepresented" will
allow small ideology-based and cause-oriented parties who lack
"well-defined political constituencies" a chance to win seats in the
House of Representatives. On the other hand, limiting to the
"marginalized and underrepresented" the sectoral parties for
labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and
other sectors that by their nature are economically at the margins
of society, will give the "marginalized and underrepresented" an
opportunity to likewise win seats in the House of Representatives.
This interpretation will harmonize the 1987 Constitution and R.A.
No. 7941 and will give rise to a multi-party system where those
"marginalized and underrepresented," both in economic and
ideological status, will have the opportunity to send their own
members to the House of Representatives. This interpretation will
also make the party-list system honest and transparent,
eliminating the need for relatively well-off party-list
representatives to masquerade as "wallowing in poverty,
destitution and infirmity," even as they attend sessions in
Congress riding in SUVs.
The major political parties are those that field candidates in the
legislative district elections. Major political parties cannot
participate in the party-list elections since they neither lack "welldefined political constituencies" nor represent "marginalized and
underrepresented" sectors. Thus, the national or regional

parties under the party-list system are necessarily those that

do not belong to major political parties. This automatically
reserves the national and regional parties under the party-list
system to those who "lack well-defined political constituencies,"
giving them the opportunity to have members in the House of
Representatives.
To recall, Ang Bagong Bayani expressly declared, in its second
guideline for the accreditation of parties under the party-list
system, that "while even major political parties are expressly
allowed by RA 7941 and the Constitution to participate in the
party-list system, they must comply with the declared statutory
policy of enabling Filipino citizens belonging to marginalized and
underrepresented sectors xxx to be elected to the House of
Representatives. "However, the requirement in Ang Bagong
Bayani, in its second guideline, that "the political party xxx must
represent the marginalized and underrepresented," automatically
disqualified major political parties from participating in the partylist system. This inherent inconsistency in Ang Bagong Bayani
has been compounded by the COMELECs refusal to register
sectoral wings officially organized by major political parties.
BANAT merely formalized the prevailing practice when
it expressly prohibited major political parties from participating
in the party-list system, even through their sectoral wings.
Section 11 of R.A. No. 7941 expressly prohibited the "first five
(5) major political parties on the basis of party representation in
the House of Representatives at the start of the Tenth Congress"
from participating in the May 1988 party-list elections.59 Thus,
major political parties can participate in subsequent partylist elections since the prohibition is expressly limited only
to the 1988 party-list elections. However, major political parties
should participate in party-list elections only through their sectoral
wings. The participation of major political parties through their
sectoral wings, a majority of whose members are "marginalized
and underrepresented" or lacking in "well-defined political
constituencies," will facilitate the entry of the "marginalized and

underrepresented" and those who "lack well-defined political

constituencies" as members of the House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political
parties to participate in party-list elections so as to encourage
them to work assiduously in extending their constituencies to the
"marginalized and underrepresented" and to those who "lack
well-defined political constituencies." The participation of major
political parties in party-list elections must be geared towards the
entry, as members of the House of Representatives, of the
"marginalized and underrepresented" and those who "lack welldefined political constituencies," giving them a voice in lawmaking. Thus,to participate in party-list elections, a major political
party that fields candidates in the legislative district elections must
organize a sectoral wing, like a labor, peasant, fisherfolk, urban
poor, professional, women or youth wing, that can register under
the party-list system.
Such sectoral wing of a major political party must have its own
constitution, by-laws, platform or program of government, officers
and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral
party, and is linked to a major political party through a coalition.
This linkage is allowed by Section 3 of R.A. No. 7941, which
provides that "component parties or organizations of a coalition
may participate independently (in party-list elections) provided the
coalition of which they form part does not participate in the partylist system."
Section 9 of R.A. No. 7941 prescribes the qualifications of partylist nominees. This provision prescribes a special qualification
only for the nominee from the youth sector.
Section 9. Qualifications of Party-List Nominees. No person shall
be nominated as party-list representative unless he is a naturalborn citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, a bona

fide member of the party or organization which he seeks to

represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of
the election.

Third, x x x the religious sector may not be represented in the

party-list system. x x x.

In case of a nominee of the youth sector, he must at least be

twenty-five (25) but not more than thirty (30) years of age on the
day of the election.

Fourth, a party or an organization must not be disqualified under

Section 6 of RA 7941, which enumerates the grounds for
disqualification as follows:

Any youth sectoral representative who attains the age of thirty

(30) during his term shall be allowed to continue in office until the
expiration of his term.

xxxx

"(1) It is a religious sect or denomination, organization or

association, organized for religious purposes;

1wphi1

A party-list nominee must be a bona fide member of the party or

organization which he or she seeks to represent.In the case of
sectoral parties, to be a bona fide party-list nominee one
must either belong to the sector represented, or have a track
record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria
prescribed in Ang Bagong Bayani and BANAT. Ang Bagong
Bayani laid down the guidelines for qualifying those who desire to
participate in the party-list system:
First, the political party, sector, organization or coalition
must represent the marginalized and underrepresented
groups identified in Section 5 of RA 7941. x x x
Second, while even major political parties are expressly allowed
by RA 7941 and the Constitution to participate in the party-list
system, they must comply with the declared statutory policy of
enabling "Filipino citizens belonging to marginalized and
underrepresented sectors x x x to be elected to the House of
Representatives." x x x.
xxxx

(2) It advocates violence or unlawful means to seek its

goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government,
foreign political party, foundation, organization, whether
directly or through any of its officers or members or
indirectly through third parties for partisan election
purposes;
(5) It violates or fails to comply with laws, rules or
regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding
elections or fails to obtain at least two per centum (2%) of
the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has
registered."

Fifth, the party or organization must not be an adjunct of, or a

project organized or an entity funded or assisted by, the
government. x x x.
xxxx
Sixth, the party must not only comply with the requirements of the
law; its nominees must likewise do so. Section 9 of RA 7941
reads as follows:
"SEC 9. Qualifications of Party-List Nominees. - No person shall
be nominated as party-list representative unless he is a naturalborn citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1)year immediately
preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of
the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on the
day of the election. Any youth sectoral representative who attains
the age of thirty (30) during his term shall be allowed to continue
in office until the expiration of his term."
Seventh, not only the candidate party or organization must
represent marginalized and underrepresented sectors; so
also must its nominees. x x x.
Eighth, x x x the nominee must likewise be able to contribute to
the formulation and enactment of appropriate legislation that will
benefit the nation as a whole. (Emphasis supplied)
In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang
Bagong Bayani ruling further. In BANAT, the majority officially
excluded major political parties from participating in party-list

elections,60 abandoning even the lip-service that Ang Bagong

Bayani accorded to the 1987 Constitution and R.A.No. 7941 that
major political parties can participate in party-list elections.
The minority in BANAT, however, believed that major political
parties can participate in the party-list system through their
sectoral wings. The minority expressed that "[e]xcluding the major
political parties in party-list elections is manifestly against the
Constitution, the intent of the Constitutional Commission, and
R.A. No. 7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of major political
parties from the party-list elections in patent violation of the
Constitution and the law."61 The experimentations in socio-political
engineering have only resulted in confusion and absurdity in the
party-list system. Such experimentations, in clear contravention of
the 1987 Constitution and R.A. No. 7941, must now come to an
end.
We cannot, however, fault the COMELEC for following prevailing
jurisprudence in disqualifying petitioners. In following prevailing
jurisprudence, the COMELEC could not have committed grave
abuse of discretion. However, for the coming 13 May 2013 partylist elections, we must now impose and mandate the party-list
system actually envisioned and authorized under the 1987
Constitution and R.A. No. 7941. In BANAT, this Court devised a
new formula in the allocation of party-list seats, reversing the
COMELEC's allocation which followed the then prevailing formula
in Ang Bagong Bayani. In BANAT, however, the Court did not
declare that the COMELEC committed grave abuse of discretion.
Similarly, even as we acknowledge here that the COMELEC did
not commit grave abuse of discretion, we declare that it would not
be in accord with the 1987 Constitution and R.A. No. 7941 to
apply the criteria in Ang Bagong Bayani and BANAT in
determining who are qualified to participate in the coming 13
May 2013 party-list elections. For this purpose, we suspend our
rule62 that a party may appeal to this Court from decisions or
orders of the COMELEC only if the COMELEC committed grave
abuse of discretion.

Thus, we remand all the present petitions to the COMELEC. In

determining who may participate in the coming 13 May 2013 and
subsequent party-list elections, the COMELEC shall adhere to the
following parameters:
1. Three different groups may participate in the party-list
system: (1) national parties or organizations, (2) regional
parties or organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and regional parties or
organizations do not need to organize along sectoral lines
and do not need to represent any "marginalized and
underrepresented" sector.
3. Political parties can participate in party-list elections
provided they register under the party-list system and do
not field candidates in legislative district elections. A
political party, whether major or not, that fields candidates
in legislative district elections can participate in party-list
elections only through its sectoral wing that can
separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party,
and is linked to a political party through a coalition.
4. Sectoral parties or organizations may either be
"marginalized and underrepresented" or lacking in "welldefined political constituencies." It is enough that their
principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas
workers. The sectors that lack "well-defined political
constituencies" include professionals, the elderly, women,
and the youth.

5. A majority of the members of sectoral parties or

organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a
majority of the members of sectoral parties or
organizations that lack "well-defined political
constituencies" must belong to the sector they represent.
The nominees of sectoral parties or organizations that
represent the "marginalized and underrepresented," or
that represent those who lack "well-defined political
constituencies," either must belong to their respective
sectors, or must have a track record of advocacy for their
respective sectors. The nominees of national and regional
parties or organizations must be bona-fide members of
such parties or organizations.
6. National, regional, and sectoral parties or organizations
shall not be disqualified if some of their nominees are
disqualified, provided that they have at least one nominee
who remains qualified.
The COMELEC excluded from participating in the 13 May 2013
party-list elections those that did not satisfy these two criteria: (1)
all national, regional, and sectoral groups or organizations must
represent the "marginalized and underrepresented" sectors, and
(2) all nominees must belong to the "marginalized and
underrepresented" sector they represent. Petitioners may have
been disqualified by the COMELEC because as political or
regional parties they are not organized along sectoral lines and
do not represent the "marginalized and underrepresented." Also,
petitioners' nominees who do not belong to the sectors they
represent may have been disqualified, although they may have a
track record of advocacy for their sectors. Likewise, nominees of
non-sectoral parties may have been disqualified because they do
not belong to any sector. Moreover, a party may have been
disqualified because one or more of its nominees failed to qualify,
even if the party has at least one remaining qualified nominee. As
discussed above, the disqualification of petitioners, and their

nominees, under such circumstances is contrary to the 1987

Constitution and R.A. No. 7941.

COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,

This Court is sworn to uphold the 1987 Constitution, apply its

provisions faithfully, and desist from engaging in socio-economic
or political experimentations contrary to what the Constitution has
ordained. Judicial power does not include the power to re-write
the Constitution. Thus, the present petitions should be remanded
to the COMELEC not because the COMELEC committed grave
abuse of discretion in disqualifying petitioners, but because
petitioners may now possibly qualify to participate in the coming
13 May 2013 party-list elections under the new parameters
prescribed by this Court. WHEREFORE, all the present 54
petitions are GRANTED. The 13 petitions, which have been
granted Status Quo Ante Orders but without mandatory injunction
to include the names of petitioners in the printing of ballots, are
remanded to the Commission on Elections only for determination
whether petitioners are qualified to register under the party-list
system under the parameters prescribed in this Decision but they
shall not participate in the 13 May 2013 part-list elections. The 41
petitions, which have been granted mandatory injunctions to
include the names of petitioners in the printing of ballots, are
remanded to the Commission on Elections for determination
whether petitioners are qualified to register under the party-list
system and to participate in the 13 May 2013 party-list elections
under the parameters prescribed in this Decision. The
Commission on Elections may conduct summary evidentiary
hearings for this purpose. This Decision is immediately executory.

Respondents.

SO ORDERED.

BAI SANDRA S. A. SEMA, G.R. No. 177597

Petitioner,
- versus -

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

PERFECTO F. MARQUEZ, G.R. No. 178628

Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARD
O-DE
CASTRO,
and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. July 16, 2008

municipalities.[3] Maguindanao

forms

part

of

the

Autonomous Region in Muslim Mindanao (ARMM),

created under its Organic Act, Republic Act No. 6734

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

(RA 6734), as amended by Republic Act No. 9054 (RA

9054).[4] Although

----------x

under

the

Ordinance, Cotabato City forms part of Maguindanaos

first legislative district, it is not part of the ARMM but

DECISION

of Region XII, having voted against its inclusion in the

ARMM in the plebiscite held in November 1989.

CARPIO, J.:

On 28 August 2006, the ARMMs legislature, the ARMM

The Case

Regional Assembly, exercising its power to create

provinces under Section 19, Article VI of RA 9054,

These consolidated petitions[1] seek to annul Resolution

[5]

enacted Muslim Mindanao Autonomy Act No. 201

No. 7902, dated 10 May 2007, of the Commission on

(MMA

Elections (COMELEC) treating Cotabato City as part of

Kabunsuan composed of the eight municipalities in the

the legislative district of the Province of Shariff

first district of Maguindanao. MMA Act 201 provides:

Section 1. The Municipalities of Barira,
Buldon, Datu Odin Sinsuat, Kabuntalan,
Matanog, Parang, Sultan Kudarat, Sultan
Mastura, and Upi are hereby separated
from
the Province of Maguindanao and
constituted
into
a
distinct
and
independent province, which is hereby
created,
to
be
known
as
the Province of Shariff Kabunsuan.

Kabunsuan.[2]
The Facts

The Ordinance appended to the 1987 Constitution

apportioned

two

legislative

the Province of Maguindanao.

district

consists

The

districts
first

for

Act

legislative

of Cotabato City and

eight

xxxx

201)

creating

the Province of Shariff

Sec. 5. The corporate existence of

this province shall commence upon the
appointment by the Regional Governor or
election of the governor and majority of
the regular members of the Sangguniang
Panlalawigan.
The incumbent elective provincial officials
of the Province of Maguindanao shall
continue to serve their unexpired terms in
the province that they will choose or
where they are residents: Provided, that
where an elective position in both
provinces
becomes
vacant
as
a
consequence of the creation of the
Province of Shariff Kabunsuan, all
incumbent elective provincial officials
shall have preference for appointment to
a higher elective vacant position and for
the time being be appointed by the
Regional Governor, and shall hold office
until their successors shall have been
elected and qualified in the next local
elections; Provided, further, that they
shall continue to receive the salaries they
are receiving at the time of the approval
of this Act until the new readjustment of
salaries in accordance with law.Provided,
furthermore, that there shall be no
diminution in the number of the members
of the Sangguniang Panlalawigan of the
mother province.
Except as may be provided by national
law, the existing legislative district, which

includes Cotabato as a part thereof, shall

remain.

Later, three new municipalities[6] were carved out of

the original nine municipalities constituting Shariff
Kabunsuan, bringing its total number of municipalities
to 11. Thus, what was left of Maguindanao were the
municipalities

constituting

its

second

legislative

district. Cotabato City, although part of Maguindanaos

first

legislative

district,

is

not

part

of

the Province ofMaguindanao.

The voters of Maguindanao ratified

Shariff

Kabunsuans creation in a plebiscite held on 29 October

2006.
On

February

2007,

the

Sangguniang

Panlungsod of Cotabato City passed Resolution No.

3999 requesting the COMELEC to clarify the status of
Cotabato City in view of the conversion of the First
District of Maguindanao into a regular province under
MMA Act 201.
In answer to Cotabato Citys query, the COMELEC
issued

Resolution

2007 "maintaining

No.
the

07-0407

on 6

status

March
quo

with Cotabato City as part of Shariff Kabunsuan in the

First Legislative District of Maguindanao. Resolution

No. 07-0407, which adopted the recommendation of

the COMELECs Law Department under a Memorandum
dated 27 February 2007,

[7]

provides in pertinent parts:

In G.R. No. 177597, Sema, who was a candidate in

the 14 May 2007 elections for Representative of Shariff
Kabunsuan

Considering
the
foregoing,
the
Commission RESOLVED, as it hereby
resolves, to adopt the recommendation of
the Law Department that pending the
enactment of the appropriate law by
Congress, to maintain the status quo
with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District
of Maguindanao. (Emphasis supplied)

with Cotabato City,

prayed

for

the

nullification of COMELEC Resolution No. 7902 and the

exclusion

from

canvassing

of

the

votes

cast

in Cotabato City for that office. Sema contended that

Shariff Kabunsuan is entitled to one representative in
Congress under Section 5 (3), Article VI of the
Constitution[10] and

Section

appended to the Constitution.

[11]

of

the

Ordinance

Thus, Sema asserted

that the COMELEC acted without or in excess of its

However,
2007 elections,
March

in
the

preparation
COMELEC

2007 Resolution

No.

for

the 14

promulgated
7845

stating

May
on 29
that

Maguindanaos first legislative district is composed only

of Cotabato City because of the enactment of MMA Act
201.[8]
On 10 May 2007, the COMELEC issued Resolution No.
7902, subject of these petitions, amending Resolution
No. 07-0407 by renaming the legislative district in
question
as ShariffKabunsuan Province with Cotabato City (form
erly First District of Maguindanao with Cotabato City).[9]

jurisdiction in issuing Resolution No. 7902 which

maintained the status quo in Maguindanaos first
legislative

district

despite

the

COMELECs

earlier

directive in Resolution No. 7845 designating Cotabato

City

as

the

lone

component

of

Maguindanaos

reapportioned first legislative district.[12] Sema further

claimed that in issuing Resolution No. 7902, the
COMELEC usurped Congress power to create or
reapportion legislative districts.
In its Comment, the COMELEC, through the Office of
the Solicitor General (OSG), chose not to reach the
merits of the case and merely contended that (1)
Sema wrongly availed of the writ of certiorari to nullify

COMELEC Resolution No. 7902 because the COMELEC

population requirement under Section 5 (3), Article VI

issued the same in the exercise of its administrative,

of the Constitution for the creation of a legislative

not quasi-judicial, power and (2) Semas prayer for the

district within a city.[13]

writ of prohibition in G.R. No. 177597 became moot

with the proclamation of respondent Didagen P.

Sema filed a Consolidated Reply controverting the

Dilangalen (respondent Dilangalen) on 1 June 2007 as

matters

representative of the legislative district of Shariff

reiterating her claim that the COMELEC acted ultra

Kabunsuan Province with Cotabato City.

vires in issuing Resolution No. 7902.

In his Comment, respondent Dilangalen countered that

raised

in

respondents

Comments

and

In the Resolution of 4 September 2007, the

COMELEC

Court required the parties in G.R. No. 177597 to

Resolution No. 7902 because in her certificate of

comment on the issue of whether a province created

candidacy filed on 29 March 2007, Sema indicated that

by the ARMM Regional Assembly under Section 19,

she was seeking election as representative of Shariff

Article VI of RA 9054 is entitled to one representative

Kabunsuan

including Cotabato City. Respondent

in the House of Representatives without need of a

Dilangalen added that COMELEC Resolution No. 7902

national law creating a legislative district for such new

is constitutional because it did not apportion a

province. The parties submitted their compliance as

legislative district for Shariff Kabunsuan or reapportion

follows:

Sema

is

estopped

from

questioning

the legislative districts in Maguindanao but merely

renamed

Maguindanaos

Respondent

Dilangalen

first

legislative

further

claimed

district.
that

the

(1) Sema answered the issue in the affirmative

on the following grounds: (a) the Court in Felwa v.

COMELEC could not reapportion Maguindanaos first

Salas[14] stated that when a province is created by

legislative district to make Cotabato City its sole

statute,

component unit as the power to reapportion legislative

comes into existence neither by authority of that

districts lies exclusively with Congress, not to mention

statute

that Cotabato City does not meet the minimum

apportionment, but by operation of the Constitution,

the
which

corresponding
cannot

representative

provide

otherwise

district
nor

by

without a reapportionment; (b) Section 462 of Republic

elections, which encompasses the apportionment of

Act No. 7160 (RA 7160) affirms the apportionment of a

legislative districts for members of the House of

legislative district incident to the creation of a

Representatives; (c) recognizing a legislative district in

province; and (c) Section 5 (3), Article VI of the

every province the ARMM Regional Assembly creates

Constitution and Section 3 of the Ordinance appended

will lead to the disproportionate representation of the

to the Constitution mandate the apportionment of a

ARMM in the House of Representatives as the Regional

legislative district in newly created provinces.

Assembly can create provinces without regard to the

requirements in Section 461 of RA 7160; and (d)

(2)

The

COMELEC,

again

represented

by

Cotabato City, which has a population of less than

the OSG, apparently abandoned its earlier stance on

250,000, is not entitled to a representative in the

the propriety of issuing Resolution Nos. 07-0407 and

House of Representatives.

7902 and joined causes with Sema, contending that

Section 5 (3), Article VI of the Constitution is self-

On 27 November 2007, the Court heard the

executing. Thus, every new province created by the

parties in G.R. No. 177597 in oral arguments on the

ARMM Regional Assembly is ipso facto entitled to one

following issues: (1) whether Section 19, Article VI of

representative in the House of Representatives even in

RA 9054, delegating to the ARMM Regional Assembly

the absence of a national law; and

the power to create provinces, is constitutional; and

(2) if in the affirmative, whether a province created

(3) Respondent Dilangalen answered the issue

under Section 19, Article VI of RA 9054 is entitled to

in the negative on the following grounds: (a) the

one representative in the House of Representatives

province contemplated in Section 5 (3), Article VI of

without need of a national law creating a legislative

the Constitution is one that is created by an act of

district for such new province.[15]

Congress taking into account the provisions in RA 7160

on the creation of provinces; (b) Section 3, Article IV of

In compliance with the Resolution dated 27

RA 9054 withheld from the ARMM Regional Assembly

November 2007, the parties in G.R. No. 177597 filed

the power to enact measures relating to national

their respective Memoranda on the issues raised in the

arguments.[16] On

oral

the

question

of

the

(2)

Respondent
19, Article

Dilangalen
VI

of

RA

contended

constitutionality of Section 19, Article VI of RA 9054,

that Section

9054

is

the parties in G.R. No. 177597 adopted the following

unconstitutional on the following grounds: (a) the

positions:

power to create provinces was not among those

granted to the autonomous regions under Section 20,

(1) Sema contended that Section 19, Article VI

Article X of the Constitution and (b) the grant under

of RA 9054 is constitutional (a) as a valid delegation by

Section 19, Article VI of RA 9054 to the ARMM Regional

Congress to the ARMM of the power to create

Assembly of the power to prescribe standards lower

provinces under Section 20 (9), Article X of the

than those mandated in Section 461 of RA 7160 on the

Constitution granting to the autonomous regions,

creation of provinces contravenes Section 10, Article X

through their organic acts, legislative powers over

of the Constitution and the Equal Protection Clause;

other matters as may be authorized by law for the

and

promotion of the general welfare of the people of the

region and (b) as an amendment to Section 6 of RA
7160.

[17]

However,

Sema

concedes

that,

if

(3) The COMELEC, through the OSG, joined

taken

causes with respondent Dilangalen (thus effectively

literally, the grant in Section 19, Article VI of RA 9054

abandoning the position the COMELEC adopted in its

to the ARMM Regional Assembly of the power to

Compliance with the Resolution of 4 September 2007)

prescribe standards lower than those mandated in RA

and contended that Section 19, Article VI of RA 9054 is

7160 in the creation of provinces contravenes Section

unconstitutional because (a) it contravenes Section 10

Sema

and Section 6,[20] Article X of the Constitution and (b)

proposed that Section 19 should be construed as

the power to create provinces was withheld from the

prohibiting the Regional Assembly from prescribing

autonomous regions under Section 20, Article X of the

standards x x x that do not comply with the minimum

Constitution.

10,

Article

of

the

Constitution.[18] Thus,

criteria under RA 7160.[19]

On the question of whether a province created
under Section 19, Article VI of RA 9054 is entitled to

The Issues

one representative in the House of Representatives

without need of a national law creating a legislative

The petitions raise the following issues:

district for such new province, Sema and respondent

Dilangalen reiterated in their Memoranda the positions

I. In G.R. No. 177597:

they adopted in their Compliance with the Resolution

(A) Preliminarily

of

4 September

2007.

The

COMELEC deemed

it

(1) whether the writs of Certiorari, Prohibition,

unnecessary to submit its position on this issue

and Mandamus are proper to test the constitutionality

considering its stance that Section 19, Article VI of RA

of COMELEC Resolution No. 7902; and

9054 is unconstitutional.

(2) whether the proclamation of respondent

Dilangalen

The pendency of the petition in G.R. No. 178628

was

disclosed

during

the

oral

arguments

on 27

as

representative

of Shariff Kabunsuan Province with Cotabato City moot

ed the petition in G.R. No. 177597.

November 2007. Thus, in the Resolution of 19 February

2008, the Court orderedG.R. No. 178628 consolidated
with G.R. No. 177597. The petition in G.R. No. 178628
echoed

Sema's

contention

acted ultra

vires in

depriving

the

issuing
voters

that the

COMELEC

Resolution No.
of Cotabato City of

representative in the House of Representatives. In its

Comment to the petition in G.R. No. 178628, the
COMELEC, through the OSG, maintained the validity of
COMELEC

Resolution

No.

7902

as

temporary

measure pending the enactment by Congress of the

appropriate law.

(B) On the merits

7902

(1) whether Section 19, Article VI of RA 9054,

delegating to the ARMM Regional Assembly the power
to

create

provinces,

cities,

municipalities

and

barangays, is constitutional; and

(2) if in the affirmative, whether a province
created by the ARMM Regional Assembly under MMA
Act 201 pursuant to Section 19, Article VI of RA 9054 is
entitled

to

one

representative

in

the

House

of

Representatives

without

need

of

national

law

creating a legislative district for such province.

II.

In

G.R

No. 177597

and

G.R

No. 178628, whether COMELEC Resolution No. 7902 is

valid for maintaining the status quo in the first
legislative

district

of

Maguindanao

(as

On the Preliminary Matters

Shariff

Kabunsuan Province with Cotabato City [formerly First

District of Maguindanao with Cotabato City]), despite
the creation of the Province of Shariff Kabunsuan out
of such district (excluding Cotabato City).

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations

The Ruling of the Court

The purpose of the writ of Certiorari is to correct
The petitions have no merit. We rule that (1) Section

grave abuse of discretion by any tribunal, board, or

19, Article VI of RA 9054 is unconstitutional insofar

officer exercising judicial or quasi-judicial functions.

as it grants to the ARMM Regional Assembly the power

[21]

to create provinces and cities; (2) MMA Act 201

to compel a tribunal, corporation, board, officer, or

creating the Province of Shariff Kabunsuan is void; and

person to perform an act which the law specifically

(3) COMELEC Resolution No. 7902 is valid.

enjoins as a duty.[22] True, the COMELEC did not issue

On the other hand, the writ of Mandamus will issue

Resolution No. 7902 in the exercise of its judicial or

quasi-judicial functions.[23] Nor is there a law which
specifically enjoins the COMELEC to exclude from
canvassing

the

votes

cast

in Cotabato City for

representative

Article VI of RA 9054. Admittedly, the outcome of this

of Shariff Kabunsuan Province with Cotabato City.

petition, one way or another, determines whether the

These, however, do not justify the outright dismissal of

votes cast in Cotabato Cityfor representative of the

the petition in G.R. No. 177597 because Sema also

district

prayed for the issuance of the writ of Prohibition and

of Shariff Kabunsuan Province with Cotabato City will

we have long recognized this writ as proper for testing

be included in the canvassing of ballots. However, this

the constitutionality of election laws,

incidental consequence is no reason for us not to

rules, and

regulations.[24]

proceed with the resolution of the novel issues raised

here. The Courts ruling in these petitions affects not
only the recently concluded elections but also all the

Respondent Dilangalens Proclamation

other succeeding elections for the office in question,

Does Not Moot the Petition

as well as the power of the ARMM Regional Assembly

to create in the future additional provinces.

There is also no merit in the claim that respondent

On the Main Issues

Dilangalens proclamation as winner in the 14 May

2007 elections

for

representative

of Shariff Kabunsuan Province with Cotabato Citymoote

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

d this petition. This case does not concern respondent

Dilangalens election. Rather, it involves an inquiry into

The creation of local government units is governed by

the validity of COMELEC Resolution No. 7902, as well

Section 10, Article X of the Constitution, which

as the constitutionality of MMA Act 201 and Section 19,

provides:

provision of the Constitution. In fact, Congress has

Sec.
10.
No
province,
city,
municipality, or barangay may be
created, divided, merged, abolished or its
boundary substantially altered except in
accordance with the criteria established
in the local government code and subject
to approval by a majority of the votes
cast in a plebiscite in the political units
directly affected.

delegated to provincial boards, and city and municipal

councils, the power to create barangays within their
jurisdiction,[25] subject to compliance with the criteria
established in the Local Government Code, and the
plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government
Code, only x x x an Act of Congress can create

Thus, the creation of any of the four local government

units province, city, municipality or barangay must
comply with three conditions. First, the creation of a
local government unit must follow the criteria fixed in
the Local Government Code. Second, such creation
must

not

conflict

with

any

provision

of

the

Constitution. Third, there must be a plebiscite in the

political units affected.

grant of authority in the Constitution for Congress to

delegate to regional or local legislative bodies the
power to create local government units. However,
under its plenary legislative powers, Congress can
delegate to local legislative bodies the power to create
government

units,

Under Section 19, Article VI of RA 9054, Congress

delegated to the ARMM Regional Assembly the power
to

create

provinces,

cities,

municipalities

barangays

within

the

ARMM.Congress

delegation

under

its

plenary

made

legislative

and
the

powers

because the power to create local government units is

not one of the express legislative powers granted by

There is neither an express prohibition nor an express

local

provinces, cities or municipalities.[26]

subject

to

reasonable

standards and provided no conflict arises with any

the Constitution to regional legislative bodies. [27] In the

present

case,

the

question

arises

whether

the

delegation to the ARMM Regional Assembly of the

power to create provinces, cities, municipalities and
barangays

conflicts

with

any

provision

of

the

Constitution.
There is no provision in the Constitution that conflicts
with the delegation to regional legislative bodies of the

power

to

create

municipalities

and

barangays,

citys

population

reaches

250,000,

the

city

provided Section 10, Article X of the Constitution is

automatically becomes entitled to one representative

followed. However, the creation of provinces and cities

under Section 5 (3), Article VI of the Constitution and

is another matter. Section 5 (3), Article VI of the

Section

Constitution provides, Each city with a population of at

Constitution. Thus, the power to create a province

least two hundred fifty thousand, or each province,

or city inherently involves the power to create a

shall have at least one representative in the House of

legislative district.

of

the

Ordinance

appended

to

the

Representatives. Similarly, Section 3 of the Ordinance

appended to the Constitution provides, Any province

For Congress to delegate validly the power to

that may hereafter be created, or any city whose

create a province or city, it must also validly delegate

population may hereafter increase to more than two

at the same time the power to create a legislative

hundred

the

district. The threshold issue then is, can Congress

immediately following election to at least one Member

validly delegate to the ARMM Regional Assembly the

x x x.

power to create legislative districts for the House of

fifty

thousand

shall

be

entitled

in

Representatives? The answer is in the negative.

Clearly, a province cannot be created without a
legislative district because it will violate Section 5 (3),
Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same
reason, a city with a population of 250,000 or more

Legislative Districts are Created or

Reapportioned
Only by an Act of Congress

cannot also be created without a legislative district.

Thus, the power to create a province, or a city with a

Under the present Constitution, as well as in

population of 250,000 or more, requires also the power

past[28] Constitutions,

to create a legislative district. Even the creation of a

allowable

city with a population of less than 250,000 involves the

power to create a legislative district because once the

the

membership

Representatives,

and

power
in

to

to

increase

the

the

House

of

reapportion

legislative

districts, is vested exclusively in Congress. Section 5,

Article VI of the Constitution provides:

(3) Each legislative district shall

comprise,

as

contiguous,
SECTION
Representatives

5.

(1)

shall

The
be

House

far

as

compact,

practicable,

and

adjacent

of

territory. Each city with a population of at

composed of

least two hundred fifty thousand, or each

not more than two hundred and fifty

province,

shall

members, unless otherwise fixed by

representative.

have

at

least

one

law, who shall be elected from legislative

districts

apportioned

among

the

(4) Within three years following the

provinces, cities, and the Metropolitan

return

Manila

Congress shall

area

in

accordance

with

the

of

every

number of their respective inhabitants,

reapportionment

and on the basis of a uniform and

districts based

progressive ratio, and those who, as

provided

provided by law, shall be elected through

supplied)

in

this

census, the
make

of
on

legislative

the

standards

section.

(Emphasis

a party-list system of registered national,

regional,

and

sectoral

parties

or

organizations.
Section 5 (1), Article VI of the Constitution vests
xxxx

in Congress the power to increase, through a law, the

allowable

membership

in

the

House

of

Representatives. Section 5 (4) empowers Congress to

reapportion

legislative

districts. The

power

to

create or reapportion legislative districts for a national

reapportion legislative districts necessarily includes

legislature like Congress. An inferior legislative body,

the power to create legislative districts out of existing

created by a superior legislative body, cannot change

ones. Congress exercises these powers through a law

the membership of the superior legislative body.

that Congress itself enacts, and not through a law that

regional or local legislative bodies enact. The allowable

The creation of the ARMM, and the grant of

membership of the House of Representatives can be

legislative powers to its Regional Assembly under its

increased, and new legislative districts of Congress can

organic act, did not divest Congress of its exclusive

be created, only through a national law passed by

authority to create legislative districts. This is clear

Congress. In Montejo v. COMELEC,[29] we held that the

from the Constitution and the ARMM Organic Act, as

power of redistricting x x x is traditionally regarded as

amended.

part of the power (of Congress) to make laws, and thus

Constitution provides:

Thus,

Section

20,

Article

of

is vested exclusively in Congress.

SECTION 20. Within its territorial
This textual commitment to Congress of the

jurisdiction and subject to the provisions

exclusive power to create or reapportion legislative

of this Constitution and national laws, the

districts is logical. Congress is a national legislature

organic act of autonomous regions shall

and any increase in its allowable membership or in its

provide for legislative powers over:

incumbent

membership

through

the

creation

of

(1) Administrative organization;

legislative districts must be embodied in a national

(2) Creation of sources of revenues;

law. Only Congress can enact such a law. It would be

(3) Ancestral domain and natural

anomalous for regional or local legislative bodies to

resources;

the

(4) Personal, family, and property

power x x x except on the following matters: x x

relations;

x (k) National elections. x x x. Since the ARMM

(5) Regional

urban

and

rural

Regional Assembly has no legislative power to enact

planning development;

laws relating to national elections, it cannot create a

(6) Economic, social, and tourism

legislative district whose representative is elected in

development;

national elections. Whenever Congress enacts a law

(7) Educational policies;

creating a legislative district, the first representative is

(8) Preservation and development

always elected in the next national elections from the

effectivity of the law.[30]

of the cultural heritage; and

(9) Such other matters as may be

Indeed,

the

office

of

legislative

district

authorized by law for the promotion of

representative to Congress is a national office, and

the general welfare of the people of the

its

region.

Representatives, is a national official.[31] It would be

occupant,

Member

of

the

House

of

incongruous for a regional legislative body like the

Nothing

in

the

ARMM Regional Assembly to create a national office

regions,

when its legislative powers extend only to its regional

expressly or impliedly, to create or reapportion

territory. The office of a district representative is

legislative districts for Congress.

maintained by national funds and the salary of its

Constitution

Section

20,

authorizes

Article

autonomous

of

occupant is paid out of national funds. It is a selfOn the other hand, Section 3, Article IV of RA

evident inherent limitation on the legislative powers of

9054 amending the ARMM Organic Act, provides, The

every local or regional legislative body that it can only

Regional

Assembly

may

exercise

legislative

create local or regional offices, respectively, and it can

part

never create a national office.

supplied)

To allow the ARMM Regional Assembly to create

a national office is to allow its legislative powers to
operate outside the ARMMs territorial jurisdiction. This
violates Section 20, Article X of the Constitution
which expressly limits the coverage of the

thereof,

shall

remain. (Emphasis

However, a province cannot legally be created without

a

legislative

district

because

the

Constitution

mandates that each province shall have at least one

representative. Thus, the creation of the Province of
Shariff Kabunsuan without a legislative district is
unconstitutional.

Regional Assemblys legislative powers [w]ithin

its territorial jurisdiction x x x.

Sema, petitioner in G.R. No. 177597, contends that

Section 5 (3), Article VI of the Constitution, which

The ARMM Regional Assembly itself, in creating

provides:

Shariff Kabunsuan, recognized the exclusive nature of

Congress power to create or reapportion legislative

Each

legislative

comprise,

district for Shariff Kabunsuan. Section 5 of MMA Act

contiguous,

201 provides that:

territory. Each city with a population

Except as may be provided by

at

compact,

least

thousand,

far

two

or each

as

shall

districts by abstaining from creating a legislative

of

as

district

practicable,

and

adjacent

hundred

fifty

province,

shall

national law, the existing legislative

have at least one representative.

district, which includes Cotabato City as a

(Emphasis supplied)

and Section 3 of the Ordinance appended to the

adjustment shall not be made within one

Constitution, which states:

hundred and twenty days before the

election. (Emphasis supplied)

Any

province

hereafter

created, or

may
city

serve as bases for the conclusion that the Province of

hereafter

Shariff Kabunsuan, created on 29 October 2006, is

increase to more than two hundred

automatically entitled to one member in the House of

fifty thousand shall be entitled in the

Representatives in the 14 May 2007 elections. As

immediately following election to at

further support for her stance, petitioner invokes the

least one Member or such number of

statement in Felwa that when a province is created by

Members as it may be entitled to on

statute,

the

comes into existence neither by authority of that

whose

be

that

population

basis

of

inhabitants

the

and

any

may

number

according

of
to

its
the

statute

the

which

corresponding

cannot

representative

provide

otherwise

district

nor

by

standards set forth in paragraph (3),

apportionment, but by operation of the Constitution,

Section

without a reapportionment.

of

Article

VI

of

the

Constitution. The number of Members

apportioned to the province out of which

The contention has no merit.

such new province was created or where

the

city,

whose

population

has

so

First. The issue in Felwa, among others, was whether

increased, is geographically located shall

Republic Act No.

be

provinces of Benguet, Mountain Province, Ifugao, and

correspondingly

Commission

on

adjusted

Elections

by

but

the
such

Kalinga-Apayao and

4695 (RA 4695),

providing

for

creating

the

congressional

representation in the old and new provinces, was

unconstitutional for creati[ng] congressional districts
without

the

apportionment

provided

in

the

Constitution. The Court answered in the negative,

thus:

The Constitution ordains:

The
House
of
Representatives
shall
be
composed of not more than
one hundred and twenty
Members who shall be
apportioned
among
the
several provinces as nearly
as may be according to the
number of their respective
inhabitants,
but
each
province shall have at least
one Member. The Congress
shall by law make an
apportionment within three
years after the return of
every enumeration, and not
otherwise.
Until
such
apportionment shall have
been made, the House of
Representatives shall have
the
same
number
of
Members as that fixed by
law
for
the
National
Assembly, who shall be

elected by the qualified

electors from the present
Assembly
districts.
Each
representative district shall
comprise
as
far
as
practicable, contiguous and
compact territory.
Pursuant
to
this
Section,
a
representative district may come
into existence: (a) indirectly, through
the creation of a province for each
province shall have at least one
member
in
the
House
of
Representatives; or (b) by direct
creation of several representative
districts
within
a
province. The
requirements
concerning
the
apportionment of representative districts
and the territory thereof refer only to the
second
method
of
creation
of
representative districts, and do not apply
to those incidental to the creation of
provinces, under the first method. This is
deducible, not only from the general
tenor of the provision above quoted, but,
also, from the fact that the apportionment
therein alluded to refers to that which is
made by an Act of Congress. Indeed,
when a province is created by
statute,
the
corresponding
representative district, comes into
existence neither by authority of
that statute which cannot provide
otherwise nor by apportionment, but
by operation of the Constitution,
without a reapportionment.

There is no constitutional limitation as to

maximum

the time when, territory of, or other

under the 1935 Constitution. Felwa does not apply to

conditions under which a province may be

the present case because in Felwa the new provinces

created,

were

except,

perhaps,

if

the

number

created

by

of

legislative

a national

districts provided

law

enacted

by

consequence thereof were to exceed the

Congress itself. Here, the new province was created

maximum of 120 representative districts

merely by a regional law enacted by the ARMM

prescribed in the Constitution, which is

Regional Assembly.

not the effect of the legislation under

consideration.

fact,

What Felwa teaches is that the creation of a

or

legislative district by Congress does not emanate

subdivided into other provinces, with the

alone from Congress power to reapportion legislative

consequent

districts, but also from Congress power to create

provinces

As

have

matter

been

creation

of

created

of

additional

representative

districts,

without

complying

the

with

provinces

aforementioned

which

cannot

be

created

without

legislative district. Thus, when a province is created, a

requirements.[32] (Emphasis supplied)

legislative district is created by operation of the

Constitution because the Constitution provides
that each province shall have at least one

Thus, the Court sustained the constitutionality of RA

representative in the House of Representatives. This

4695 because (1) it validly created legislative districts

does not detract from the constitutional principle that

indirectly through

by

the power to create legislative districts belongs

Congress creating a provinceand (2) the creation of

exclusively to Congress. It merely prevents any other

the legislative districts will not result in breaching the

legislative

special

law

enacted

body,

except

Congress,

from

creating

provinces because for a legislative body to create a

Second. Semas theory also undermines the

province such legislative body must have the power to

composition

create legislative districts. In short, only an act of

Representatives. Under Section 19, [33] Article VI of RA

Congress can trigger the creation of a legislative

9054,

district by operation of the Constitution. Thus, only

provinces

Congress has the power to create, or trigger the

without regard to the criteria fixed in Section 461 of

creation of, a legislative district.

RA

the

and

independence

ARMM
and

7160,

Regional

cities

within

of

the

Assembly
the

namely: minimum

House

can

create

ARMM with

annual

of

or

income

of P20,000,000, and minimum contiguous territory of

Moreover, if as Sema claims MMA Act 201

2,000 square kilometers or minimum population of

apportioned a legislative district to Shariff Kabunsuan

250,000.[34] The

upon its creation, this will leave Cotabato City as the

distinct possibilities:

lone component of the first legislative district of

Maguindanao. However,

Cotabato

City

cannot

constitute a legislative district by itself because as of

the census taken in 2000, it had a population of only
163,849. To constitute Cotabato City alone as the
surviving first legislative district of Maguindanao will
violate Section 5 (3), Article VI of the Constitution
which requires that [E]ach city with a population of at
least two hundred fifty thousand x x x, shall have at
least one representative.

following

scenarios

thus

become

(1) An inferior legislative body like

the ARMM Regional Assembly can create
100 or more provinces and thus increase
the membership of a superior legislative
body, the House of Representatives,
beyond the maximum limit of 250 fixed in
the Constitution (unless a national law
provides otherwise);
(2) The proportional representation
in the House of Representatives based on
one representative for at least every
250,000 residents will be negated
because the ARMM Regional Assembly
need not comply with the requirement in
Section 461(a)(ii) of RA 7160 that every

province created must have a population

of at least 250,000; and

Yes, Your Honor, because the Constitution allows

that.

(3) Representatives from the ARMM

provinces can become the majority in the
House of Representatives through the
ARMM Regional Assemblys continuous
creation of provinces or cities within the
ARMM.

Justice Carpio:
So, [the] Regional Assembly of
[the] ARMM can create and create
x

provinces x

x and,

therefore, they can have thirty-five

The

following

exchange

during

the

oral

arguments of the petition in G.R. No. 177597 highlights

the absurdity of Semas position that the ARMM
Regional Assembly can create provinces:

Justice Carpio:
So, you mean to say [a] Local
Government can create legislative
district[s] and pack Congress with
their own representatives [?]

Atty. Vistan II:[35]

(35) new representatives in the

House of Representatives without
Congress agreeing to it, is that
what you are saying? That can be
done, under your theory[?]

Atty. Vistan II:

Yes, Your Honor, under the correct

factual circumstances.

Justice Carpio:
Under

your

theory,

the

ARMM

legislature can create thirty-five

(35) new provinces, there may be x

x x [only] one hundred thousand

(100,000) [population], x x x, and
they

will

each

have

Atty. Vistan II:

one

representative x x x to Congress

Yes, Your Honor.[36] (Emphasis supplied)

without any national law, is that

what you are saying?
Neither the framers of the 1987 Constitution in
Atty. Vistan II:

adopting the provisions in Article X on regional

autonomy,[37] nor

Congress

in

enacting

RA

9054,

Without law passed by Congress,

envisioned or intended these disastrous consequences

yes, Your Honor, that is what we

that certainly would wreck the tri-branch system of

are saying.

government under our Constitution. Clearly, the power

to create or reapportion legislative districts cannot be

xxxx

delegated by Congress but must be exercised by

Justice Carpio:

Congress itself. Even the ARMM Regional Assembly

So, they can also create one

thousand

(1000)

recognizes this.

new

provinces, sen[d] one thousand

The Constitution empowered Congress to create or

(1000) representatives to the

reapportion

House

assemblies. Section

of

Representatives

legislative
3

districts,
of

the

not

the

Ordinance

regional
to

the

without a national law[,] that is

Constitution which states, [A]ny province that may

legally possible, correct?

hereafter be created x x x shall be entitled in the

immediately

following

election

to

at

least

one

legislative

powers

of

are

jurisdiction

and

limited [w]ithin

itself through a national law. The reason is that the

subject to the provisions of the Constitution and

creation

actual

national laws, x x x. The Preamble of the ARMM

membership of the House of Representatives, an

Organic Act (RA 9054) itself states that the ARMM

increase that only Congress can decide. Incidentally, in

Government is established within the framework of the

the present 14thCongress, there are 219[38] district

Constitution. This follows Section 15, Article X of the

representatives out of the maximum 250 seats in the

Constitution which mandates that the ARMM shall be

House of Representatives. Since party-list members

created x

shall constitute 20 percent of total membership of the

Constitution and

House, there should at least be 50 party-list seats

well as territorial integrity of the Republic of the

available in every election in case 50 party-list

Philippines.

province

increases

the

territorial

assemblies

Member, refers to a province created by Congress

of

its

regional

x within
the

the

framework

national

of

this

sovereignty

as

candidates are proclaimed winners. This leaves only

200 seats for district representatives, much less than

The present case involves the creation of a local

the 219 incumbent district representatives. Thus, there

government unit that necessarily involves also the

is a need now for Congress to increase by law the

creation of a legislative district. The Court will not pass

allowable membership of the House, even before

upon

Congress can create new provinces.

municipalities and barangays that does not comply

the

constitutionality

of

the

creation

of

with the criteria established in Section 461 of RA 7160,

It is axiomatic that organic acts of autonomous regions

as

cannot

Constitution,

prevail

over

the

Constitution. Section

20,

Article X of the Constitution expressly provides that the

mandated

in

Section

because

10,

the

Article
creation

X
of

of

the
such

municipalities and barangays does not involve the

creation of legislative districts. We leave the resolution

operate

of this issue to an appropriate case.

provided

only
in

within
Section

its

territorial
20,

jurisdiction

Article

of

as
the

Constitution. Thus, we rule that MMA Act 201, enacted

In summary, we rule that Section 19, Article VI of RA

by the ARMM Regional Assembly and creating the

9054, insofar as it grants to the ARMM Regional

Province of Shariff Kabunsuan, is void.

Assembly the power to create provinces and cities, is

void for being contrary to Section 5 of Article VI and

Resolution

Section 20 of Article X of the Constitution, as well as

Constitution

Section

of

the

Ordinance

appended

to

No.

7902

Complies

with

the

the

Constitution. Only Congress can create provinces and

Consequently, we hold that COMELEC Resolution

cities because the creation of provinces and cities

No. 7902, preserving the geographic and legislative

necessarily includes the creation of legislative districts,

district of the First District of Maguindanao with

a power only Congress can exercise under Section 5,

Cotabato City, is valid as it merely complies with

Article VI of the Constitution and Section 3 of the

Section 5 of Article VI and Section 20 of Article X of the

Ordinance appended to the Constitution. The ARMM

Constitution, as well as Section 1 of the Ordinance

Regional Assembly cannot create a province without a

appended to the Constitution.

legislative district because the Constitution mandates

that

every

province

district. Moreover,

the

shall
ARMM

have

Regional

legislative

WHEREFORE, we declare Section 19, Article VI of

Assembly

Republic Act No. 9054 UNCONSTITUTIONAL insofar

cannot enact a law creating a national office like the

as it

grants

to

the

office of a district representative of Congress because

Autonomous Region in Muslim Mindanao the power to

the legislative powers of the ARMM Regional Assembly

create

provinces

Regional

and

Assembly

cities. Thus,

of

the

we

PUNO, C.J.,

declare VOID Muslim Mindanao Autonomy Act No. 201

creating

the

Province

Kabunsuan. Consequently,

we

of
rule

that

QUISUMBING,

Shariff

YNARES-SANTIAGO,

COMELEC

Resolution No. 7902 is VALID.

CARPIO,
AUSTRIA-MARTINEZ,
-

versus -

Let a copy of this ruling be served on the

CORONA,
CARPIO MORALES,

President of the Senate and the Speaker of the House

AZCUNA,

of Representatives.

TINGA,
CHICO-NAZARIO,

SO ORDERED.

VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO,

ROGELIO Z. BAGABUYO,
Petitioner,

G.R. No. 176970

BRION, JJ.

Promulgated:

Present:
COMMISSION ON ELECTIONS,
Respondent.

December 8, 2008

representative to Congress as well as eight members

x----------------------------------------------------------------------------------------------------x
of the Sangguniang Panglungsod.
DECISION
BRION, J.:

Before us is the petition for certiorari,

prohibition, and mandamus,[1] with a prayer for the
issuance of a temporary restraining order and a writ of
preliminary injunction, filed by Rogelio Bagabuyo
(petitioner) to prevent the Commission on Elections
(COMELEC) from implementing Resolution No. 7837 on
the ground that Republic Act No. 9371[2] the law that
Resolution No. 7837 implements is unconstitutional.

BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros then
Congressman Constantino G. Jaraula filed and
sponsored House Bill No. 5859: An Act Providing for the
Apportionment of the Lone Legislative District of the
City of Cagayan De Oro.[3] This law eventually became
Republic Act (R.A.) No. 9371.[4] It increased Cagayan de
Oros legislative district from one to two. For the
election of May 2007, Cagayan de Oros voters would
be classified as belonging to either the first or the
second district, depending on their place of residence.
The constituents of each district would elect their own

Section 1 of R.A. No. 9371 apportioned the

Citys barangays as follows:
Legislative Districts The lone legislative
district of the City of Cagayan De Oro is
hereby apportioned to commence in the
next
national
elections
after
the
effectivity of this Act. Henceforth,
barangays Bonbon, Bayabas, Kauswagan,
Carmen, Patag, Bulua, Iponan, Baikingon,
San Simon, Pagatpat, Canitoan, Balulang,
Lumbia, Pagalungan, Tagpangi, Taglimao,
Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and
Bisigan shall comprise the first district
while barangays Macabalan, Puntod,
Consolacion,
Camaman-an,
Nazareth,
Macasandig, Indahag, Lapasan, Gusa,
Cugman, FS Catanico, Tablon, Agusan,
Puerto, Bugo, and Balubal and all urban
barangays from Barangay 1 to Barangay
40 shall comprise the second district.[5]

On March
13,
2007,
the
COMELEC en
[6]
Banc promulgated Resolution No. 7837 implementing
R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present

petition against the COMELEC on March 27, 2007.
[7]
On 10 April 2008, the petitioner amended the
petition to include the following as respondents:
Executive Secretary Eduardo Ermita; the Secretary of
the Department of Budget and Management; the
Chairman of the Commission on Audit; the Mayor and
the members of the Sangguniang Panglungsod of
Cagayan de Oro City; and its Board of Canvassers. [8]
In asking for the nullification of R.A. No. 9371 and
Resolution No. 7837 on constitutional grounds, the
petitioner argued that the COMELEC cannot implement
R.A. No. 9371 without providing for the rules,
regulations and guidelines for the conduct of a
plebiscite which is indispensable for the division or
conversion of a local government unit. He prayed for
the issuance of an order directing the respondents to
cease and desist from implementing R.A. No. 9371 and
COMELEC Resolution No. 7837, and to revert instead to
COMELEC Resolution No. 7801 which provided for a
single legislative district for Cagayan de Oro.
Since the Court did not grant the petitioners
prayer for a temporary restraining order or writ of
preliminary injunction, the May 14 National and Local
Elections proceeded according to R.A. No. 9371 and
Resolution No. 7837.
The respondents Comment on the petition, filed
through the Office of the Solicitor General, argued
that: 1) the petitioner did not respect the hierarchy of

courts, as the Regional Trial Court (RTC) is vested with

concurrent jurisdiction over cases assailing the
constitutionality of a statute; 2) R.A. No. 9371 merely
increased the representation of Cagayan de Oro City in
the House of Representatives and Sangguniang
Panglungsod pursuant to Section 5, Article VI of the
1987 Constitution; 3) the criteria established under
Section 10, Article X of the 1987 Constitution only
apply when there is a creation, division, merger,
abolition or substantial alteration of boundaries of a
province, city, municipality, or barangay; in this case,
no such creation, division, merger, abolition or
alteration of boundaries of a local government unit
took place; and 4) R.A. No. 9371 did not bring about
any change in Cagayan de Oros territory, population
and income classification; hence, no plebiscite is
required.
The petitioner argued in his reply that: 1) pursuant to
the Courts ruling in Del Mar v. PAGCOR,[9] the Court
may take cognizance of this petition if compelling
reasons, or the nature and importance of the issues
raised, warrant the immediate exercise of its
jurisdiction; 2) Cagayan de Oro Citys reapportionment
under R.A. No. 9371 falls within the meaning of
creation, division, merger, abolition or substantial
alteration of boundaries of cities under Section 10,
Article X of the Constitution; 3) the creation, division,
merger, abolition or substantial alteration of
boundaries of local government units involve a
common denominator the material change in the

political and economic rights of the local government

units directly affected, as well as of the people therein;
4) a voters sovereign power to decide on who should
be elected as the entire citys Congressman was
arbitrarily reduced by at least one half because the
questioned law and resolution only allowed him to vote
and be voted for in the district designated by the
COMELEC; 5) a voter was also arbitrarily denied his
right to elect the Congressman and the members of
the city council for the other legislative district, and 6)
government funds were illegally disbursed without
prior approval by the sovereign electorate of Cagayan
De Oro City.[10]

THE ISSUES

The core issues, based on the petition and the parties

memoranda, can be limited to the following
contentious points:

1)

Did the petitioner violate the hierarchy of

courts rule; if so, should the instant petition be
dismissed on this ground?

2)

Does R.A. No. 9371 merely provide for the

legislative reapportionment of Cagayan de Oro

City, or does it involve the division

conversion of a local government unit?
3)

and

Does R.A. No. 9371 violate the equality of

representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts

rule, we find the petition totally without merit.

The
hierarchy of
courts
principle.

The Supreme Court has original jurisdiction over

petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.[11] It was pursuant to this
original jurisdiction that the petitioner filed the present
petition.

While this jurisdiction is shared with the Court of

Appeals[12] and the RTCs,[13] a direct invocation of the

Supreme Courts jurisdiction is allowed only when there

are special and important reasons therefor, clearly and
especially set out in the petition. Reasons of
practicality, dictated by an increasingly overcrowded
docket and the need to prioritize in favor ofmatters
within our exclusive jurisdiction, justify the existence of
this rule otherwise known as the principle of hierarchy
of courts. More generally stated, the principle requires
that recourse must first be made to the lower-ranked
court exercising concurrent jurisdiction with a higher
court.[14]

Among the cases we have considered

sufficiently special and important to be exceptions to
the
rule,
are
petitions
for certiorari, prohibition, mandamus and quo
warranto against our nations lawmakers when the
validity of their enactments is assailed.[15] The present
petition is of this nature; its subject matter and the
nature of the issues raised among them, whether
legislative reapportionment involves a division of
Cagayan de Oro City as a local government unit are
reasons enough for considering it an exception to the
principle of hierarchy of courts.Additionally, the
petition assails as well a resolution of the COMELEC en
banc issued
to
implement
the
legislative
apportionment that R.A. No. 9371 decrees. As an
action against a COMELEC en banc resolution, the case
falls under Rule 64 of the Rules of Court that in turn

requires a review by this Court via a Rule 65 petition

for certiorari.[16] For these reasons, we do not see the
principle of hierarchy of courts to be a stumbling block
in our consideration of the present case.

The
Plebiscite
Requiremen
t.

The petitioner insists that R.A. No. 9371 converts and

divides the City of Cagayan de Oro as a local
government unit, and does not merely provide for the
Citys legislative apportionment. This argument
essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative
districts and division of local government units.

Legislative apportionment is defined by Blacks Law

Dictionary as the determination of the number of
representatives which a State, county or other
subdivision may send to a legislative body.[17] It is the
allocation of seats in a legislative body in proportion to
the population; the drawing of voting district lines so
as to equalize population and voting power among the

districts.[18] Reapportionment, on the other hand, is

the realignment or change in legislative districts
brought about by changes in population and
mandated by the constitutional requirement of
equality of representation.[19]

Article VI (entitled Legislative Department) of

the 1987 Constitution lays down the rules on
legislative apportionment under its Section 5 which
provides:
Sec. 5(1). (1) The House of
Representatives shall be composed of not
more than two hundred fifty members
unless otherwise fixed by law, who shall
be elected from legislative districts
apportioned among the provinces, cities,
and the Metropolitan Manila area in
accordance with the number of their
respective inhabitants, and on the basis
of a uniform and progressive ratio, and
those who, as provided by law, shall be
elected through a party-list system of
registered national, regional and sectoral
parties or organizations.

xxx

(3) Each legislative district shall

comprise,
as
far
as
practicable,
continuous,
compact,
and
adjacent
territory. Each city with a population of at
least two hundred fifty thousand, or each
province, shall have at least one
representative.

(4) Within three years following the

return of every census, the Congress shall
make a reapportionment of legislative
districts based on the standards provided
in this section.

Separately from the legislative districts that

legal apportionment or reapportionment speaks of, are
the local government units (historically and generically
referred to as municipal corporations) that the
Constitution itself classified into provinces, cities,
municipalities and barangays.[20] In its strict and proper
sense, a municipality has been defined as a body
politic and corporate constituted by the incorporation
of the inhabitants of a city or town for the purpose of
local government thereof.[21] The creation, division,
merger, abolition or alteration of boundary of local
government
units, i.e., of
provinces,
cities,
municipalities, and barangays, are covered by the

Article on Local Government (Article X). Section 10 of

this Article provides:

No
province,
city,
municipality,
or barangay may be created, divided,
merged, abolished, or its boundary
substantially
altered,
except
in
accordance with the criteria established
in the local government code and subject
to approval by a majority of the votes
cast in a plebiscite in the political unit
directly affected.

Under both Article VI, Section 5, and Article X,

Section 10 of the Constitution, the authority to act has
been vested in the Legislature. The Legislature
undertakes the apportionment and reapportionment of
legislative districts,[22] and likewise acts on local
government units by setting the standards for their
creation, division, merger, abolition and alteration
ofboundaries and by actually creating, dividing,
merging, abolishing local government units and
altering their boundaries through legislation. Other
than this, not much commonality exists between the
two provisions since they are inherently different
although they interface and relate with one another.
The concern that leaps from the text of Article
VI, Section 5 is political representation and the means
to make a legislative district sufficiently represented so
that the people can be effectively heard. As above
stated, the aim of legislative apportionment is to
equalize population and voting power among districts.
[23]
Hence, emphasis is given to the number of people
represented; the uniform and progressive ratio to be
observed among the representative districts; and
accessibility and commonality of interests in terms of
each district being, as far as practicable, continuous,
compact and adjacent territory. In terms of the people
represented, every city with at least 250,000 people
and every province (irrespective of population) is
entitled to one representative. In this sense, legislative
districts, on the one hand, and provinces and cities, on
the other, relate and interface with each other. To

ensure continued adherence to the required standards

of apportionment, Section 5(4) specifically mandates
reapportionment as soon as the given standards are
met.

In contrast with the equal representation

objective of Article VI, Section 5, Article X, Section 10
expressly speaks of how local government units may
be created, divided, merged, abolished, or its
boundary substantially altered. Its concern is the
commencement, the termination, and the modification
of local government units corporate existence and
territorial coverage; and it speaks of two specific
standards that must be observed in implementing this
concern, namely, the criteria established in the local
government code and the approval by a majority of
the votes cast in a plebiscite in the political units
directly affected. Under the Local Government Code
(R.A. No. 7160) passed in 1991, the criteria of income,
population and land area are specified as verifiable
indicators of viability and capacity to provide services.
[24]
The division or merger of existing units must
comply with the same requirements (since a new local
government unit will come into being), provided that a
division shall not reduce the income, population, or
land area of the unit affected to less than the
minimum requirement prescribed in the Code. [25]

A pronounced distinction between Article VI,

Section 5 and, Article X, Section 10 is on the
requirement of a plebiscite. The Constitution and the
Local Government Code expressly require a plebiscite
to carry out any creation, division, merger, abolition or
alteration of boundary of a local government unit.[26] In
contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. In Tobias
v. Abalos,[27] a case that arose from the division of the
congressional district formerly covering San Juan and
Mandaluyong into separate districts, we confirmed this
distinction and the fact that no plebiscite is needed in
a legislative reapportionment. The plebiscite issue
came up because one was ordered and held for
Mandaluyong in the course of its conversion into a
highly urbanized city, while none was held for San
Juan. In explaining why this happened, the Court ruled
that no plebiscite was necessary for San Juan because
the objective of the plebiscite was the conversion of
Mandaluyong into a highly urbanized city as required
by Article X, Section 10 the Local Government Code;
the creation of a new legislative district only followed
as a consequence. In other words, the apportionment
alone and by itself did not call for a plebiscite, so that
none was needed for San Juan where only a
reapportionment took place.

The need for a plebiscite under Article X, Section 10

and the lack of requirement for one under Article VI,

Section 5 can best be appreciated by a consideration

of the historical roots of these two provisions, the
nature of the concepts they embody as heretofore
discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,[28] we first jurisprudentially

acknowledged
the
American
roots
of
our
apportionment provision, noting its roots from
the Fourteenth Amendment[29] of the U.S. Constitution
and from the constitutions of some American
states. The Philippine Organic Act of 1902 created the
Philippine Assembly,[30] the body that acted as the
lower house of the bicameral legislature under the
Americans, with the Philippine Commission acting as
the upper house. While the members of the Philippine
Commission were appointed by the U.S. President with
the conformity of the U.S. Senate, the members of the
Philippine Assembly were elected by representative
districts previously delineated under the Philippine
Organic Act of 1902 pursuant to the mandate to
apportion the seats of the Philippine Assembly among
the provinces as nearly as practicable according to
population. Thus, legislative apportionment first
started in our country.

The Jones Law or the Philippine Autonomy Act of

1916 maintained the apportionment provision, dividing
the country into 12 senate districts and 90
representative districts electing one delegate each to
the House of Representatives. Section 16 of the Act
specifically vested the Philippine Legislature with the
authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section

5 retained the concept of legislative apportionment
together with district as the basic unit of
apportionment; the concern was equality of
representation . . . as an essential feature of
republican institutions as expressed in the leading
case of Macias v. COMELEC.[31] The case ruled that
inequality of representation is a justiciable, not a
political issue, which ruling was reiterated in Montejo
v. COMELEC.[32] Notably, no issue regarding the holding
of a plebiscite ever came up in these cases and the
others that followed, as no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained

the concept of equal representation in accordance with
the number of their respective inhabitants and on the
basis of a uniform and progressive ratio with each
district being, as far as practicable, contiguous,
compact and adjacent territory. This formulation was
essentially carried over to the 1987 Constitution,
distinguished only from the previous one by the
presence of party-list representatives. In neither
Constitution was a plebiscite required.

The need for a plebiscite in the creation,

division, merger, or abolition of local government units
was not constitutionally enshrined until the 1973
Constitution. However, as early as 1959, R.A. No.

2264[33] required, in the creation of barrios by

Provincial Boards, that the creation and definition of
boundaries be upon petition of a majority of the voters
in the areas affected. In 1961, the Charter of the City
of Caloocan (R.A. No. 3278) carried this further by
requiring that the Act shall take effect after a majority
of voters of the Municipality of Caloocan vote in favor
of the conversion of their municipality into a city in a
plebiscite. This was followed up to 1972 by other
legislative enactments requiring a plebiscite as a
condition for the creation and conversion of local
government units as well as the transfer of sitios from
one legislative unit to another.[34] In 1973, the
plebiscite requirement was accorded constitutional
status.

Under these separate historical tracks, it can be

seen that the holding of a plebiscite was never a
requirement
in
legislative
apportionment
or
reapportionment. After it became constitutionally
entrenched, a plebiscite was also always identified
with the creation, division, merger, abolition and
alteration of boundaries of local government units,
never with the concept of legislative apportionment.

The legislative district that Article VI, Section

5 speaks of may, in a sense, be called a political unit
because it is the basis for the election of a member of
the House of Representatives and members of the
local legislative body. It is not, however, a political
subdivision through which functions of government are
carried out. It can more appropriately be described as
a representative unit that may or may not encompass
the whole of a city or a province, but unlike the latter,
it is not a corporate unit. Not being a corporate unit, a
district does not act for and in behalf of the people
comprising the district; it merely delineates the areas
occupied by the people who will choose a
representative in their national affairs. Unlike a
province, which has a governor; a city or a
municipality, which has a mayor; and a barangay,
which has a punong barangay, a district does not have
its own chief executive. The role of thecongressman
that it elects is to ensure that the voice of the people
of the district is heard in Congress, not to oversee the
affairs of the legislative district. Not being a corporate
unit also signifies that it has no legal personality that
must be created or dissolved and has no capacity to
act. Hence, there is no need for any plebiscite in the
creation, dissolution or any other similar action on a
legislative district.

Nature and Areas of Application.

are

The local government units, on the other hand,

political
and corporate units. They
are
the

territorial and political subdivisions of the state.

[35]
They possess legal personality on the authority of
the Constitution and by action of the Legislature. The
Constitution defines them as entities that Congress
can, by law, create, divide, abolish, merge; or whose
boundaries can be altered based on standards again
established by both the Constitution and the
Legislature.[36] A local government units corporate
existence begins upon the election and qualification of
its chief executive and a majority of the members of
its Sanggunian.[37]

As a political subdivision, a local government

unit is an instrumentality of the state in carrying out
the functions of government.[38] As a corporate entity
with a distinct and separate juridical personality from
the State, it exercises special functions for the sole
benefit of its constituents. It acts as an agency of the
community in the administration of local affairs [39] and
the mediums through which the people act in their
corporate capacity on local concerns. [40] In light of
these roles, the Constitution saw it fit to expressly
secure the consent of the people affected by the
creation, division, merger, abolition or alteration of
boundaries of local government units through a
plebiscite.

These considerations clearly show the distinctions

between
a
legislative
apportionment
or
reapportionment and the division of a local
government unit. Historically and by its intrinsic
nature, a legislative apportionment does not
mean, and does not even imply, a division of a local
government unit where the apportionment takes
place. Thus, the plebiscite requirement that applies to
the division of a province, city, municipality
or barangay under the Local Government Code should
not apply to and be a requisite for the validity of a
legislative apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a

reapportionment legislation passed in accordance with
the authority granted to Congress under Article VI,
Section 5(4) of the Constitution. Its core provision
Section 1 provides:

SECTION 1. Legislative Districts.

The lone legislative district of the City
of Cagayan de Oro is hereby apportioned

to commence in the next national

elections after the effectivity of this Act.
Henceforth, barangays Bonbon, Bayabas,
Kauswagan,
Carmen,
Patag,
Bulua,
Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan,
Tagpangi, Taglimao, Tuburan, Pigsag-an,
Tumpagon,
Bayanga,
Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays
Macabalan,
Puntod,
Consolacion,
Camaman-an, Nazareth, Macansandig,
Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo
and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall
comprise the second district.

Under these wordings, no division of Cagayan

de Oro City as a political and corporate entity takes
place or is mandated. Cagayan de Oro City politically
remains a single unit and its administration is not
divided along territorial lines. Its territory remains
completely whole and intact; there is only the addition
of another legislative district and the delineation of the
city into two districts for purposes of representation in
the House of Representatives. Thus, Article X, Section
10 of the Constitution does not come into play and no
plebiscite is necessary to validly apportion Cagayan de
Oro City into two districts.

Admittedly, the legislative reapportionment

carries effects beyond the creation of another
congressional district in the city by providing, as
reflected in COMELEC Resolution No. 7837, for
additional Sangguniang Panglunsod seats to be voted
for along the lines of the congressional apportionment
made. The effect on the Sangguniang Panglunsod,
however, is not directly traceable to R.A. No. 9371 but
to another law R.A. No. 6636[41] whose Section 3
provides:

SECTION 3. Other Cities. The provision of

any law to the contrary notwithstanding
the City of Cebu, City of Davao, and any
other
city
with
more
than
one
representative district shall have eight (8)
councilors for each district who shall be
residents thereof to be elected by the
qualified voters therein, provided that the
cities of Cagayan de Oro, Zamboanga,
Bacolod, Iloilo and other cities comprising
a representative district shall have twelve
(12) councilors each and all other cities
shall have ten (10) councilors each to be
elected at large by the qualified voters of
the said cities: Provided, That in no case
shall the present number of councilors
according to their charters be reduced.

However, neither does this law have the effect of

dividing the City of Cagayan de Oro into two political
and corporate units and territories. Rather than divide
the city either territorially or as a corporate entity, the
effect is merely to enhance voter representation by
giving each city voter more and greater say, both in
Congress and in the Sangguniang Panglunsod.

To
illustrate
this
effect,
before
the
reapportionment, Cagayan de Oro had only one
congressman and 12 city council members citywide for
its population of approximately 500,000.[42] By having
two legislative districts, each of them with one
congressman, Cagayan de Oro now effectively has two
congressmen, each one representing 250,000 of the
citys population.In terms of services for city residents,
this easily means better access to their congressman
since each one now services only 250,000 constituents
as against the 500,000 he used to represent. The
same goes true for the Sangguniang Panglungsod with
its ranks increased from 12 to 16 since each legislative
district now has 8 councilors. In representation terms,
the fewer constituents represented translate to a
greater voice for each individual city resident in
Congress and in the Sanggunian; each congressman
and each councilor represents both a smaller area and
fewer constituents whose fewer numbers are now
concentrated in each representative. The City, for its

part, now has twice the number of congressmen

speaking for it and voting in the halls of
Congress. Since the total number of congressmen in
the country has not increased to the point of doubling
its numbers, the presence of two congressman
(instead of one) from the same city cannot but be a
quantitative and proportional improvement in the
representation of Cagayan de Oro City in Congress.

Equality of representation.
The petitioner argues that the distribution of the
legislative districts is unequal. District 1 has only
93,719 registered voters while District 2 has
127,071. District
1
is
composed
mostly
of
rural barangays while District 2 is composed mostly of
urban barangays.[43] Thus, R.A. No. 9371 violates the
principle of equality of representation.

A clarification must be made. The law clearly provides

that the basis for districting shall be the number of the
inhabitants of a city or a province, not the number of
registered voterstherein. We settled this very same
question
in Herrera
v.
COMELEC[44] when
we
interpreted
a
provision
in R.A.
No.
7166 and COMELEC Resolution No. 2313 that applied
to theProvince of Guimaras. We categorically ruled
that the basis for districting is the number of inhabitan

ts of the Province of Guimaras by municipality based o

n the official 1995 Census ofPopulation as certified to b
y Tomas P. Africa, Administrator of the National Statisti
cs Office.

The petitioner, unfortunately, did not provide

information about the actual population of Cagayan de
Oro City. However, we take judicial notice of the
August 2007 census of the National Statistics Office
which shows that barangays comprising Cagayan de
Oros first district have a total population of 254,644,
while the second district has 299,322 residents.
Undeniably, these figures show a disparity in the
population sizes of the districts. [45] The Constitution,
however, does not require mathematical exactitude or
rigid equality as a standard in gauging equality of
representation.[46] In fact, for cities, all it asks is
that each city with a population of at least two
hundred
fifty
thousand
shall
have
one
representative, while ensuring representation for every
province regardless of the size of its population. To
ensure quality representation through commonality of
interests and ease of access by the representative to
the constituents, all that the Constitution requires is
that every legislative district should comprise, as far
as practicable, contiguous, compact, and adjacent
territory. Thus, the Constitution leaves the local
government units as they are found and does not
require their division, merger or transfer to satisfy the

numerical standard it imposes. Its requirements are

satisfied despite some numerical disparity if the units
are contiguous, compact and adjacent as far as
practicable.
The petitioners contention that there is a resulting
inequality in the division of Cagayan de Oro City into
two districts because the barangays in the first district
are mostly rural barangayswhile the second district is
mostly urban, is largely unsubstantiated. But even if
backed up by proper proof, we cannot question the
division on the basis of the difference in
the barangayslevels of development or developmental
focus as these are not part of the constitutional
standards
for
legislative
apportionment
or
reapportionment. What the components of the two
districts of Cagayan de Oro would be is a matter for
the lawmakers to determine as a matter of policy. In
the absence of any grave abuse of discretion or
violation of the established legal parameters, this
Court cannot intrude into the wisdom of these policies.
[47]

WHEREFORE, we hereby DISMISS the petition

for lack of merit. Costs against the petitioner.

SO ORDERED.
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.

KAPUNAN, J.:
A constitutional provision should be construed as to give it
effective operation and suppress the mischief at which it is
aimed. 1 The 1987 Constitution mandates that an aspirant for
election to the House of Representatives be "a registered voter in the
district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the
election." 2 The mischief which this provision reproduced verbatim
from the 1973 Constitution seeks to prevent is the possibility of a
"stranger or newcomer unacquainted with the conditions and needs
of a community and not identified with the latter, from an elective
office to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of
Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I
SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: __________
Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the

incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for Cancellation
and Disqualification" 5 with the Commission on Elections alleging
that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement for
candidates for the House of Representatives on the evidence of
declarations made by her in Voter Registration Record 94-No.
3349772 6and in her Certificate of Candidacy. He prayed that "an
order be issued declaring (petitioner) disqualified and canceling the
certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected
Certificate of Candidacy, changing the entry "seven" months to
"since childhood" in item no. 8 of the amended certificate. 8 On the
same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy on the
ground that it is filed out of time, the deadline for
the filing of the same having already lapsed on
March 20, 1995. The Corrected/Amended
Certificate of Candidacy should have been filed
on or before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate
of Candidacy with the COMELEC's Head Office in Intramuros,
Manila on
March 31, 1995. Her Answer to private respondent's petition in
SPA No. 95-009 was likewise filed with the head office on the
same day. In said Answer, petitioner averred that the entry of the
word "seven" in her original Certificate of Candidacy was the

result of an "honest misinterpretation" 10 which she sought to rectify

by adding the words "since childhood" in her Amended/Corrected
Certificate of Candidacy and that "she has always maintained
Tacloban City as her domicile or residence. 11 Impugning
respondent's motive in filing the petition seeking her disqualification,
she noted that:
When respondent (petitioner herein) announced
that she was intending to register as a voter in
Tacloban City and run for Congress in the First
District of Leyte, petitioner immediately opposed
her intended registration by writing a letter stating
that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent
had registered as a voter in Tolosa following
completion of her six month actual residence
therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued
such a move up to the Supreme Court, his
purpose being to remove respondent as
petitioner's opponent in the congressional election
in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking the creation of
another legislative district to remove the town of
Tolosa out of the First District, to achieve his
purpose. However, such bill did not pass the
Senate. Having failed on such moves, petitioner
now filed the instant petition for the same
objective, as it is obvious that he is afraid to
submit along with respondent for the judgment
and verdict of the electorate of the First District of
Leyte in an honest, orderly, peaceful, free and
clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on

Elections (COMELEC), by a vote of 2 to 1, 13 came up with a
Resolution 1) finding private respondent's Petition for Disqualification
in SPA 95-009 meritorious; 2) striking off petitioner's
Corrected/Amended Certificate of Candidacy of March 31, 1995; and
3) canceling her original Certificate of Candidacy. 14 Dealing with two
primary issues, namely, the validity of amending the original
Certificate of Candidacy after the lapse of the deadline for filing
certificates of candidacy, and petitioner's compliance with the one
year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her
Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or
honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She
averred that she thought that what was asked was
her "actual and physical" presence in Tolosa and
not residence of origin or domicile in the First
Legislative District, to which she could have
responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban
City, a component of the First District, to which
she always intended to return whenever absent
and which she has never abandoned.
Furthermore, in her memorandum, she tried to
discredit petitioner's theory of disqualification by
alleging that she has been a resident of the First
Legislative District of Leyte since childhood,
although she only became a resident of the
Municipality of Tolosa for seven months. She
asserts that she has always been a resident of
Tacloban City, a component of the First District,
before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior

to her registration in Tolosa, respondent
announced that she would be registering in
Tacloban City so that she can be a candidate for
the District. However, this intention was rebuffed
when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a
resident of Tolosa and not Tacloban. She never
disputed this claim and instead implicitly acceded
to it by registering in Tolosa.
This incident belies respondent's claim of "honest
misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for
RESIDENCE. Since on the basis of her Answer,
she was quite aware of "residence of origin" which
she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that she
thought what was asked was her actual and
physical presence in Tolosa is not easy to believe
because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the
Certificate of Candidacy speaks clearly of
"Residency in the CONSTITUENCY where I seek
to be elected immediately preceding the election."
Thus, the explanation of respondent fails to be
persuasive.
From the foregoing, respondent's defense of an
honest mistake or misinterpretation, therefore, is
devoid of merit.

To further buttress respondent's contention that an

amendment may be made, she cited the case
ofAlialy v. COMELEC (2 SCRA 957). The reliance
of respondent on the case of Alialy is misplaced.
The case only applies to the "inconsequential
deviations which cannot affect the result of the
election, or deviations from provisions intended
primarily to secure timely and orderly conduct of
elections." The Supreme Court in that case
considered the amendment only as a matter of
form. But in the instant case, the amendment
cannot be considered as a matter of form or an
inconsequential deviation. The change in the
number of years of residence in the place where
respondent seeks to be elected is a substantial
matter which determines her qualification as a
candidacy, specially those intended to suppress,
accurate material representation in the original
certificate which adversely affects the filer. To
admit the amended certificate is to condone the
evils brought by the shifting minds of manipulating
candidate, of the detriment of the integrity of the
election.
Moreover, to allow respondent to change the
seven (7) month period of her residency in order
to prolong it by claiming it was "since childhood" is
to allow an untruthfulness to be committed before
this Commission. The arithmetical accuracy of the
7 months residency the respondent indicated in
her certificate of candidacy can be gleaned from
her entry in her Voter's Registration Record
accomplished on January 28, 1995 which reflects

that she is a resident of Brgy. Olot, Tolosa, Leyte

for 6 months at the time of the said registration
(Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of
San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration
in the Permanent List of Voters thereat so that she
can be re-registered or transferred to Brgy. Olot,
Tolosa, Leyte. The dates of these three (3)
different documents show the respondent's
consistent conviction that she has transferred her
residence to Olot, Tolosa, Leyte from Metro
Manila only for such limited period of time, starting
in the last week of August 1994 which on March 8,
1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to
believe in the respondent's contention that it was
an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected
Certificate of Candidacy cannot be admitted by
this Commission.
xxx xxx xxx
Anent the second issue, and based on the
foregoing discussion, it is clear that respondent
has not complied with the one year residency
requirement of the Constitution.

In election cases, the term "residence" has always

been considered as synonymous with "domicile"
which imports not only the intention to reside in a
fixed place but also personal presence in-that
place, coupled with conduct indicative of such
intention. Domicile denotes a fixed permanent
residence to which when absent for business or
pleasure, or for like reasons, one intends to
return. (Perfecto Faypon vs. Eliseo Quirino, 96
Phil 294; Romualdez vs. RTC-Tacloban, 226
SCRA 408). In respondent's case, when she
returned to the Philippines in 1991, the residence
she chose was not Tacloban but San Juan, Metro
Manila. Thus, her animus revertendi is pointed to
Metro Manila and not Tacloban.
This Division is aware that her claim that she has
been a resident of the First District since
childhood is nothing more than to give her a color
of qualification where she is otherwise
constitutionally disqualified. It cannot hold ground
in the face of the facts admitted by the respondent
in her affidavit. Except for the time that she
studied and worked for some years after
graduation in Tacloban City, she continuously
lived in Manila. In 1959, after her husband was
elected Senator, she lived and resided in San
Juan, Metro Manila where she was a registered
voter. In 1965, she lived in San Miguel, Manila
where she was again a registered voter. In 1978,
she served as member of the Batasang
Pambansa as the representative of the City of
Manila and later on served as the Governor of

Metro Manila. She could not have served these

positions if she had not been a resident of the City
of Manila. Furthermore, when she filed her
certificate of candidacy for the office of the
President in 1992, she claimed to be a resident of
San Juan, Metro Manila. As a matter of fact on
August 24, 1994, respondent wrote a letter with
the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration
in the permanent list of voters that she may be reregistered or transferred to Barangay Olot, Tolosa,
Leyte. These facts manifest that she could not
have been a resident of Tacloban City since
childhood up to the time she filed her certificate of
candidacy because she became a resident of
many places, including Metro Manila. This
debunks her claim that prior to her residence in
Tolosa, Leyte, she was a resident of the First
Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her
lack of intention to make Tacloban her domicile.
She registered as a voter in different places and
on several occasions declared that she was a
resident of Manila. Although she spent her school
days in Tacloban, she is considered to have
abandoned such place when she chose to stay
and reside in other different places. In the case
of Romualdez vs. RTC(226 SCRA 408) the Court
explained how one acquires a new domicile by
choice. There must concur: (1) residence or bodily
presence in the new locality; (2) intention to
remain there; and (3) intention to abandon the old

domicile. In other words there must basically

be animus manendi withanimus non revertendi.
When respondent chose to stay in Ilocos and later
on in Manila, coupled with her intention to stay
there by registering as a voter there and expressly
declaring that she is a resident of that place, she
is deemed to have abandoned Tacloban City,
where she spent her childhood and school days,
as her place of domicile.
Pure intention to reside in that place is not
sufficient, there must likewise be conduct
indicative of such intention. Respondent's
statements to the effect that she has always
intended to return to Tacloban, without the
accompanying conduct to prove that intention, is
not conclusive of her choice of residence.
Respondent has not presented any evidence to
show that her conduct, one year prior the election,
showed intention to reside in Tacloban. Worse,
what was evident was that prior to her residence
in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she
was not a resident of the First District of Leyte
"since childhood."
To further support the assertion that she could
have not been a resident of the First District of
Leyte for more than one year, petitioner correctly
pointed out that on January 28, 1995 respondent
registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter

Registration Record that she resided in the

municipality of Tolosa for a period of six months.
This may be inconsequential as argued by the
respondent since it refers only to her residence in
Tolosa, Leyte. But her failure to prove that she
was a resident of the First District of Leyte prior to
her residence in Tolosa leaves nothing but a
convincing proof that she had been a resident of
the district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995
elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration 16 of the April 24, 1995 Resolution declaring her not
qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte. 17 The
Resolution tersely stated:
After deliberating on the Motion for
Reconsideration, the Commission RESOLVED to
DENY it, no new substantial matters having been
raised therein to warrant re-examination of the
resolution granting the petition for
disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass show
that she obtained the highest number of votes in the
congressional elections in the First District of Leyte. On the same
day, however, the COMELEC reversed itself and issued a second
Resolution directing that the proclamation of petitioner be
suspended in the event that she obtains the highest number of
votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred

that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from
running for the congressional seat of the First District of Leyte
and the public respondent's Resolution suspending her
proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general
areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for
election purposes, of the First District of Leyte for
a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections

Whether or not the COMELEC properly exercised

its jurisdiction in disqualifying petitioner outside
the period mandated by the Omnibus Election
Code for disqualification cases under Article 78 of
the said Code.
b) After the Elections
Whether or not the House of Representatives
Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division
reveals a startling confusion in the application of settled concepts
of "Domicile" and "Residence" in election law. While the
COMELEC seems to be in agreement with the general
proposition that for the purposes of election law, residence is
synonymous with domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for actual residence,
a conception not intended for the purpose of determining a
candidate's qualifications for election to the House of
Representatives as required by the 1987 Constitution. As it were,
residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence." In Ong
vs. Republic 20 this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent

for business or for pleasure, one intends to return, and depends on

facts and circumstances in the sense that they disclose
intent." 21 Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed
place" and animus manendi, or the intention of returning there
permanently.

Residence, in its ordinary conception, implies the factual

relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which
the resident has taken up his abode ends. One may seek a place
for purposes such as pleasure, business, or health. If a person's
intent be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is residence. 22 It is
thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a
single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice.
In Uytengsu vs. Republic, 23 we laid this distinction quite clearly:
There is a difference between domicile and
residence. "Residence" is used to indicate a place
of abode, whether permanent or temporary;
"domicile" denotes a fixed permanent residence to
which, when absent, one has the intention of
returning. A man may have a residence in one
place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with
the intention to remain for an unlimited time. A
man can have but one domicile for the same
purpose at any time, but he may have numerous
places of residence. His place of residence is

generally his place of domicile, but it is not by any

means necessarily so since no length of
residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside
in a fixed place, but also personal presence in that place, coupled
with conduct indicative of such intention." 25 Larena
vs. Teves 26 reiterated the same doctrine in a case involving the
qualifications of the respondent therein to the post of Municipal
President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held
that the absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where
one is elected does not constitute loss of residence. 28 So settled is
the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an
individual from his permanent residence without the intention to
abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond
doubt the principle that when the Constitution speaks of
"residence" in election law, it actually means only "domicile" to
wit:
Mr. Nolledo: With respect to Section 5, I
remember that in the 1971 Constitutional

Convention, there was an attempt to require

residence in the place not less than one year
immediately preceding the day of the elections.
So my question is: What is the Committee's
concept of residence of a candidate for the
legislature? Is it actual residence or is it the
concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the
regular members of the National Assembly are
concerned, the proposed section merely provides,
among others, "and a resident thereof", that is, in
the district for a period of not less than one year
preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the
interpretation given to it was domicile. 29
xxx xxx xxx

Mrs. Rosario Braid: The next question is on

Section 7, page 2. I think Commissioner Nolledo
has raised the same point that "resident" has
been interpreted at times as a matter of intention
rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision in

the Constitution in the Article on Suffrage says

that Filipinos living abroad may vote as enacted
by law. So, we have to stick to the original
concept that it should be by domicile and not
physical residence. 30
In Co vs. Electoral Tribunal of the House of
Representatives, 31 this Court concluded that the framers of the
1987 Constitution obviously adhered to the definition given to the
term residence in election law, regarding it as having the same
meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated
by Article VI, Sec. 6 of the 1987 Constitution? Of what
significance is the questioned entry in petitioner's Certificate of
Candidacy stating her residence in the First Legislative District of
Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not and individual has satisfied the constitution's residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a candidate
to deliberately and knowingly make a statement in a certificate of
candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an
honest mistake in jotting the word "seven" in the space provided
for the residency qualification requirement. The circumstances
leading to her filing the questioned entry obviously resulted in the

subsequent confusion which prompted petitioner to write down

the period of her actual stay in Tolosa, Leyte instead of her period
of residence in the First district, which was "since childhood" in
the space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned
resolution, albeit with a different interpretation. For instance,
when herein petitioner announced that she would be registering
in Tacloban City to make her eligible to run in the First District,
private respondent Montejo opposed the same, claiming that
petitioner was a resident of Tolosa, not Tacloban City. Petitioner
then registered in her place of actual residence in the First
District, which is Tolosa, Leyte, a fact which she subsequently
noted down in her Certificate of Candidacy. A close look at said
certificate would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately by the
entry for residence in the constituency where a candidate seeks
election thus:
7. RESIDENCE (complete Address): Brgy. Olot,
Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION
PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place
of actual residence in Leyte instead of petitioner's claimed
domicile, it appears that petitioner had jotted down her period of
stay in her legal residence or domicile. The juxtaposition of

entries in Item 7 and Item 8 the first requiring actual residence

and the second requiring domicile coupled with the
circumstances surrounding petitioner's registration as a voter in
Tolosa obviously led to her writing down an unintended entry for
which she could be disqualified. This honest mistake should not,
however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing
than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not
possibly be in the First District of Leyte, the Second Division of
the COMELEC, in its assailed Resolution of April 24,1995
maintains that "except for the time when (petitioner) studied and
worked for some years after graduation in Tacloban City, she
continuously lived in Manila." The Resolution additionally cites
certain facts as indicative of the fact that petitioner's domicile
ought to be any place where she lived in the last few decades
except Tacloban, Leyte. First, according to the Resolution,
petitioner, in 1959, resided in San Juan, Metro Manila where she
was also registered voter. Then, in 1965, following the election of
her husband to the Philippine presidency, she lived in San Miguel,
Manila where she as a voter. In 1978 and thereafter, she served
as a member of the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if she had
not been a resident of Metro Manila," the COMELEC stressed.
Here is where the confusion lies.
We have stated, many times in the past, that an individual does
not lose his domicile even if he has lived and maintained
residences in different places. Residence, it bears repeating,
implies a factual relationship to a given place for various

purposes. The absence from legal residence or domicile to

pursue a profession, to study or to do other things of a temporary
or semi-permanent nature does not constitute loss of residence.
Thus, the assertion by the COMELEC that "she could not have
been a resident of Tacloban City since childhood up to the time
she filed her certificate of candidacy because she became a
resident of many places" flies in the face of settled jurisprudence
in which this Court carefully made distinctions between (actual)
residence and domicile for election law purposes. In Larena
vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a
person who has his own house wherein he lives
with his family in a municipality without having
ever had the intention of abandoning it, and
without having lived either alone or with his family
in another municipality, has his residence in the
former municipality, notwithstanding his having
registered as an elector in the other municipality
in question and having been a candidate for
various insular and provincial positions, stating
every time that he is a resident of the latter
municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look
for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study
in other places, practice of his avocation, or
engaging in business. When an election is to be
held, the citizen who left his birthplace to improve
his lot may desire to return to his native town to

cast his ballot but for professional or business

reasons, or for any other reason, he may not
absent himself from his professional or business
activities; so there he registers himself as voter as
he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose
the officials who are to run the government
especially in national elections. Despite such
registration, the animus revertendi to his home, to
his domicile or residence of origin has not
forsaken him. This may be the explanation why
the registration of a voter in a place other than his
residence of origin has not been deemed
sufficient to constitute abandonment or loss of
such residence. It finds justification in the natural
desire and longing of every person to return to his
place of birth. This strong feeling of attachment to
the place of one's birth must be overcome by
positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible
to run for the position of Representative of the First District of
Leyte, the COMELEC was obviously referring to petitioner's
various places of (actual) residence, not her domicile. In doing so,
it not only ignored settled jurisprudence on residence in election
law and the deliberations of the constitutional commission but
also the provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim
from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little

over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in
the Holy Infant Academy in Tacloban from 1938 to
1949 when she graduated from high school. She
pursued her college studies in St. Paul's College,
now Divine Word University in Tacloban, where
she earned her degree in Education. Thereafter,
she taught in the Leyte Chinese School, still in
Tacloban City. In 1952 she went to Manila to work
with her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of
Representatives. In 1954, she married exPresident Ferdinand E. Marcos when he was still
a congressman of Ilocos Norte and registered
there as a voter. When her husband was elected
Senator of the Republic in 1959, she and her
husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her
husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang
Palace and registered as a voter in San Miguel,
Manila.
[I]n February 1986 (she claimed that) she and her
family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to
Manila. In 1992, respondent ran for election as
President of the Philippines and filed her
Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San
Juan, Metro Manila.

Applying the principles discussed to the facts found by

COMELEC, what is inescapable is that petitioner held various
residences for different purposes during the last four decades.
None of these purposes unequivocally point to an intention to
abandon her domicile of origin in Tacloban, Leyte. Moreover,
while petitioner was born in Manila, as a minor she naturally
followed the domicile of her parents. She grew up in Tacloban,
reached her adulthood there and eventually established
residence in different parts of the country for various reasons.
Even during her husband's presidency, at the height of the
Marcos Regime's powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal milestones
in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political
power base where her siblings and close relatives held positions
of power either through the ballot or by appointment, always with
either her influence or consent. These well-publicized ties to her
domicile of origin are part of the history and lore of the quarter
century of Marcos power in our country. Either they were entirely
ignored in the COMELEC'S Resolutions, or the majority of the
COMELEC did not know what the rest of the country always
knew: the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was
not petitioner's domicile of origin because she did not live there
until she was eight years old. He avers that after leaving the place
in 1952, she "abandoned her residency (sic) therein for many
years and . . . (could not) re-establish her domicile in said place
by merely expressing her intention to live there again." We do not
agree.

First, minor follows the domicile of his parents. As domicile, once

acquired is retained until a new one is gained, it follows that in
spite of the fact of petitioner's being born in Manila, Tacloban,
Leyte was her domicile of origin by operation of law. This domicile
was not established only when her father brought his family back
to Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect
a change of domicile, one must demonstrate: 37
1. An actual removal or an actual change of
domicile;
2. A bona fide intention of abandoning the former
place of residence and establishing a new one;
and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria,
the residence of origin should be deemed to continue. Only with
evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change
of residence requires an actual and deliberate abandonment, and
one cannot have two legal residences at the same time. 38 In the
case at bench, the evidence adduced by private respondent plainly
lacks the degree of persuasiveness required to convince this court
that an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with
an intent to supplant the former domicile with one of her own
choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost

her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952. For
there is a clearly established distinction between the Civil Code
concepts of "domicile" and "residence." 39 The presumption that the
wife automatically gains the husband's domicile by operation of law
upon marriage cannot be inferred from the use of the term
"residence" in Article 110 of the Civil Code because the Civil Code is
one area where the two concepts are well delineated. Dr. Arturo
Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference
between domicile and residence. Both terms
imply relations between a person and a place; but
in residence, the relation is one of fact while in
domicile it is legal or juridical, independent of the
necessity of physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of
the family. But the court may exempt the wife from
living with the husband if he should live abroad
unless in the service of the Republic.

La mujer esta obligada a seguir a su marido

donde quiera que fije su residencia. Los
Tribunales, sin embargo, podran con justa causa
eximirla de esta obligacion cuando el marido
transende su residencia a ultramar o' a pais
extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in
the aforequoted article, which means wherever (the
husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this
interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring
to another positive act of relocating the family to another home or
place of actual residence. The article obviously cannot be
understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility
of transferring from one place to another not only once, but as
often as the husband may deem fit to move his family, a
circumstance more consistent with the concept of actual
residence.

A survey of jurisprudence relating to Article 110 or to the concepts

of domicile or residence as they affect the female spouse upon
marriage yields nothing which would suggest that the female
spouse automatically loses her domicile of origin in favor of the
husband's choice of residence upon marriage.

The right of the husband to fix the actual residence is in harmony

with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for
the sake of family unity, be reconciled only by allowing the
husband to fix a single place of actual residence.

Article 110 is a virtual restatement of Article 58 of the Spanish

Civil Code of 1889 which states:

Very significantly, Article 110 of the Civil Code is found under Title
V under the heading: RIGHTS AND OBLIGATIONS BETWEEN

HUSBAND AND WIFE. Immediately preceding Article 110 is

Article 109 which obliges the husband and wife to live together,
thus:
Art. 109. The husband and wife are obligated
to live together, observe mutual respect and
fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and
wife are physically together. This takes into account the situations
where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order
that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we
shall be faced with a situation where the wife is left in the domicile
while the husband, for professional or other reasons, stays in one
of their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate
decision must be made from a consideration of
the purpose and intent with which the word is
used. Sometimes they are used synonymously, at
other times they are distinguished from one
another.
xxx xxx xxx
Residence in the civil law is a material fact,
referring to the physical presence of a person in a

place. A person can have two or more residences,

such as a country residence and a city residence.
Residence is acquired by living in place; on the
other hand, domicile can exist without actually
living in the place. The important thing for domicile
is that, once residence has been established in
one place, there be an intention to stay there
permanently, even if residence is also established
in some other
place. 41
In fact, even the matter of a common residence between the
husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has
recognized certain situations 42 where the spouses could not be
compelled to live with each other such that the wife is either allowed
to maintain a residence different from that of her husband or, for
obviously practical reasons, revert to her original domicile (apart from
being allowed to opt for a new one). In De la Vina vs. Villareal 43 this
Court held that "[a] married woman may acquire a residence or
domicile separate from that of her husband during the existence of
the marriage where the husband has given cause for
divorce." 44 Note that the Court allowed the wife either to obtain new
residence or to choose a new domicile in such an event. In instances
where the wife actually opts, .under the Civil Code, to live separately
from her husband either by taking new residence or reverting to her
domicile of origin, the Court has held that the wife could not be
compelled to live with her husband on pain of contempt. In Arroyo
vs. Vasques de Arroyo45 the Court held that:
Upon examination of the authorities, we are
convinced that it is not within the province of the
courts of this country to attempt to compel one of

the spouses to cohabit with, and render conjugal

rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for
restitution of such rights can be maintained. But
we are disinclined to sanction the doctrine that an
order, enforcible (sic) by process of contempt,
may be entered to compel the restitution of the
purely personal right of consortium. At best such
an order can be effective for no other purpose
than to compel the spouses to live under the
same roof; and he experience of those countries
where the courts of justice have assumed to
compel the cohabitation of married people shows
that the policy of the practice is extremely
questionable. Thus in England, formerly the
Ecclesiastical Court entertained suits for the
restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found
to warrant it, that court would make a mandatory
decree, enforceable by process of contempt in
case of disobedience, requiring the delinquent
party to live with the other and render conjugal
rights. Yet this practice was sometimes criticized
even by the judges who felt bound to enforce
such orders, and in Weldon v. Weldon (9 P.D. 52),
decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the
High Court of Justice, expressed his regret that
the English law on the subject was not the same
as that which prevailed in Scotland, where a
decree of adherence, equivalent to the decree for
the restitution of conjugal rights in England, could
be obtained by the injured spouse, but could not

be enforced by imprisonment. Accordingly, in

obedience to the growing sentiment against the
practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still
be procured, and in case of disobedience may
serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in
the character of alimony.
In the voluminous jurisprudence of the United
States, only one court, so far as we can discover,
has ever attempted to make a preemptory order
requiring one of the spouses to live with the other;
and that was in a case where a wife was ordered
to follow and live with her husband, who had
changed his domicile to the City of New Orleans.
The decision referred to (Bahn v. Darby, 36 La.
Ann., 70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of the
Spanish Civil Code. It was decided many years
ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other
states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected.
(21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme
Court of Spain appears to have affirmed an order
of the Audiencia Territorial de Valladolid requiring
a wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a
particular disposition of certain money and effects

then in her possession and to deliver to her

husband, as administrator of the ganancial
property, all income, rents, and interest which
might accrue to her from the property which she
had brought to the marriage. (113 Jur. Civ., pp. 1,
11) But it does not appear that this order for the
return of the wife to the marital domicile was
sanctioned by any other penalty than the
consequences that would be visited upon her in
respect to the use and control of her property; and
it does not appear that her disobedience to that
order would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then
Congressman Marcos, in 1954, petitioner was obliged by
virtue of Article 110 of the Civil Code to follow her husband's
actual place of residence fixed by him. The problem here is that
at that time, Mr. Marcos had several places of residence, among
which were San Juan, Rizal and Batac, Ilocos Norte. There is no
showing which of these places Mr. Marcos did fix as his family's
residence. But assuming that Mr. Marcos had fixed any of these
places as the conjugal residence, what petitioner gained upon
marriage was actual residence. She did not lose her domicile of
origin.
On the other hand, the common law concept of "matrimonial
domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code
drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in

meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's
rights in the intervening years by making the choice of domicile a
product of mutual agreement between the spouses. 46
Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as
the Civil Code is concerned-affecting the rights and obligations of
husband and wife the term residence should only be
interpreted to mean "actual residence." The inescapable
conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in
1954, she kept her domicile of origin and merely gained a new
home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a
new "domicile" after her marriage and only acquired a right to
choose a new one after her husband died, petitioner's acts
following her return to the country clearly indicate that she not
only impliedly but expressly chose her domicile of origin
(assuming this was lost by operation of law) as her domicile. This
"choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban and
Farm in Olot, Leyte. . . to make them livable for the Marcos family
to have a home in our homeland." 47 Furthermore, petitioner
obtained her residence certificate in 1992 in Tacloban, Leyte, while
living in her brother's house, an act which supports the domiciliary
intention clearly manifested in her letters to the PCGG Chairman.
She could not have gone straight to her home in San Juan, as it was
in a state of disrepair, having been previously looted by vandals. Her
"homes" and "residences" following her arrival in various parts of
Metro Manila merely qualified as temporary or "actual residences,"

not domicile. Moreover, and proceeding from our discussion pointing

out specific situations where the female spouse either reverts to her
domicile of origin or chooses a new one during the subsistence of
the marriage, it would be highly illogical for us to assume that she
cannot regain her original domicile upon the death of her husband
absent a positive act of selecting a new one where situations exist
within the subsistence of the marriage itself where the wife gains a
domicile different from her husband.

In the light of all the principles relating to residence and domicile

enunciated by this court up to this point, we are persuaded that
the facts established by the parties weigh heavily in favor of a
conclusion supporting petitioner's claim of legal residence or
domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had
already lapsed considering that the assailed resolutions were
rendered on April 24, 1995, fourteen (14) days before the election
in violation of Section 78 of the Omnibus Election
Code. 48 Moreover, petitioner contends that it is the House of
Representatives Electoral Tribunal and not the COMELEC which has
jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of

judgment within a specified time is generally construed to be
merely directory, 49 "so that non-compliance with them does not
invalidate the judgment on the theory that if the statute had intended
such result it would have clearly indicated it." 50 The difference
between a mandatory and a directory provision is often made on
grounds of necessity. Adopting the same view held by several
American authorities, this court inMarcelino vs. Cruz held that: 51
The difference between a mandatory and
directory provision is often determined on grounds
of expediency, the reason being that less injury
results to the general public by disregarding than
enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the
interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be
entered without the consent of counsel, it was
held that "the statutory provisions which may be
thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually
those which relate to the mode or time of doing
that which is essential to effect the aim and
purpose of the Legislature or some incident of the
essential act." Thus, in said case, the statute
under examination was construed merely to be
directory.
The mischief in petitioner's contending that the COMELEC should
have abstained from rendering a decision after the period stated
in the Omnibus Election Code because it lacked jurisdiction, lies
in the fact that our courts and other quasi-judicial bodies would

then refuse to render judgments merely on the ground of having

failed to reach a decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646
in relation to Section 78 of B.P. 881, 52 it is evident that the
respondent Commission does not lose jurisdiction to hear and decide
a pending disqualification case under Section 78 of B.P. 881 even
after the elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's
qualifications after the May 8, 1995 elections, suffice it to say that
HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress
begins only after a candidate has become a member of the
House of Representatives. 53 Petitioner not being a member of the
House of Representatives, it is obvious that the HRET at this point
has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the
1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a
petitioner in a case. Obviously a distinction was made on such a
ground here. Surely, many established principles of law, even of
election laws were flouted for the sake perpetuating power during
the pre-EDSA regime. We renege on these sacred ideals,
including the meaning and spirit of EDSA ourselves bending
established principles of principles of law to deny an individual
what he or she justly deserves in law. Moreover, in doing so, we
condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House
of Representatives in the First District of Leyte, the COMELEC's

questioned Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent COMELEC is
hereby directed to order the Provincial Board of Canvassers to
proclaim petitioner as the duly elected Representative of the First
District of Leyte.
SO ORDERED.

those who have received the highest number of votes cast in an

election. When a challenge to a winning candidate's qualifications
however becomes inevitable, the ineligibility ought to be so
noxious to the Constitution that giving effect to the apparent will of
the people would ultimately do harm to our democratic
institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his
Certificate of Candidacy for the position of Representative for the
new Second Legislative District of Makati City. Among others,
Aquino provided the following information in his certificate of
candidacy, viz:.
(7) RESIDENCE (Complete Address): 284
AMAPOLA COR. ADALLA STS., PALM VILLAGE,
MAKATI.
G.R. No. 120265 September 18, 1995
xxx xxx xxx
AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO
BEDON and JUANITO ICARO, respondents.

(8) RESIDENCE IN THE CONSTITUENCY

WHERE I SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: ______ Years
and 10 Months.
xxx xxx xxx

KAPUNAN, J.:
The sanctity of the people's will must be observed at all times if
our nascent democracy is to be preserved. In any challenge
having the effect of reversing a democratic choice, expressed
through the ballot, this Court should be ever so vigilant in finding
solutions which would give effect to the will of the majority, for
sound public policy dictates that all elective offices are filled by

THAT I AM ELIGIBLE for said Office; That I will

support and defend the Constitution of the
Republic of the Philippines and will maintain true
faith and allegiance thereto; That I will obey the
law, rules and decrees promulgated by the duly
constituted authorities; That the obligation
imposed to such is assumed voluntarily, without

mental reservation or purpose of evasion, and

that the facts therein are true to the best of my
knowledge. 1

WHEREFORE, in view of the foregoing, this

Commission (Second Division) RESOLVES to
DISMISS the instant: petition for Disqualification
against respondent AGAPITO AQUINO and
declares him ELIGIBLE to run for the Office of
Representative in the Second Legislative District
of Makati City.

On April 24, 1995, Move Makati, a duly registered political party,

and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of
Barangay Cembo, Makati City, filed a petition to disqualify Agapito
A. Aquino 2 on the ground that the latter lacked the residence
qualification as a candidate for congressman which, under Section 6,
Art. VI of the 1987 the Constitution, should be for a period not less
than one (1) year immediately preceding the May 8, 1995 elections.
The petition was docketed as SPA No. 95-113 and was assigned to
the Second Division of the Commission on Elections (COMELEC).

On May 7, 1995, Move Makati and Mateo Bedon filed a Motion

for Reconsideration of the May 6, 1995 resolution with the
COMELEC en banc.

On April 25, 1995, a day after said petition for disqualification was
filed, petitioner filed another certificate of candidacy amending the
certificate dated March 20, 1995. This time, petitioner stated in
Item 8 of his certificate that he had resided in the constituency
where he sought to be elected for one (l) year and thirteen (13)
days. 3

Meanwhile, on May 8, 1995, elections were held. In Makati City

where three (3) candidates vied for the congressional seat in the
Second District, petitioner garnered thirty eight thousand five
hundred forty seven (38,547) votes as against another candidate,
Agusto Syjuco, who obtained thirty five thousand nine hundred
ten (35,910) votes. 10

On May 2, 1995, petitioner filed his Answer dated April 29, 1995
praying for the dismissal of the disqualification case. 4

On May 10, 1995, private respondents Move Makati and Bedon

filed an Urgent Motion Ad Cautelum to Suspend Proclamation of
petitioner. Thereafter, they filed an Omnibus Motion for
Reconsideration of the COMELEC's Second Division resolution
dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to
Suspend Proclamation of petitioner.

On the same day, May 2, 1995, a hearing was conducted by the

COMELEC wherein petitioner testified and presented in evidence,
among others, his Affidavit dated May 2, 1995, 5 lease contract
between petitioner and Leonor Feliciano dated April 1,
1994, 6 Affidavit of Leonor Feliciano dated April 28,1995 7 and Affidavit
of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second
Division of the COMELEC promulgated a Resolution dated May
6, 1995, the decretal portion of which reads:

SO ORDERED. 9

On May 15, 1995, COMELEC en banc issued an Order

suspending petitioner's proclamation. The dispositive portion of
the order reads:

WHEREFORE, pursuant to the provisions of

Section 6 of Republic Act No. 6646, the Board of
Canvassers of the City of Makati is hereby
directed to complete the canvassing of election
returns of the Second District of Makati, but to
suspend the proclamation of respondent Agapito
A. Aquino should he obtain the winning number of
votes for the position of Representative of the
Second District of the City of Makati, until the
motion for reconsideration filed by the petitioners
on May 7, 1995, shall have been resolved by the
Commission.
The Executive Director, this Commission, is
directed to cause the immediate implementation
of this Order. The Clerk of Court of the
Commission is likewise directed to inform the
parties by the fastest means available of this
Order, and to calendar the hearing of the Motion
for Reconsideration on May 17, 1995, at 10:00 in
the morning, PICC Press Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with
urgent motion to lift order of suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental
Memorandum and Motion to Resolve Urgent Motion to Resolve
Motion to Lift Suspension of Proclamation" wherein he
manifested his intention to raise, among others, the issue of
whether of not the determination of the qualifications of petitioner
after the elections is lodged exclusively in the House of

Representatives Electoral Tribunal pursuant to Section 17, Article

VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his
proclamation, the COMELEC en banc issued an Order on June 2,
1995, the decretal portion thereof residing:
Pursuant to the said provisions and considering
the attendant circumstances of the case, the
Commission RESOLVED to proceed with the
promulgation but to suspend its rules, to accept
the filing of the aforesaid motion, and to allow the
parties to be heard thereon because the issue of
jurisdiction now before the Commission has to be
studied with more reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a
Resolution reversing the resolution of the Second Division dated
May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing,
petitioners' Motion for Reconsideration of the
Resolution of the Second Division, promulgated
on May 6, 1995, is GRANTED. Respondent
Agapito A. Aquino is declared ineligible and thus
disqualified as a candidate for the Office of
Representative of the Second Legislative District
of Makati City in the May 8, 1995 elections, for
lack of the constitutional qualification of residence.
Consequently, the order of suspension of
proclamation of the respondent should he obtain
the winning number of votes, issued by this

Commission on May 15, 1995 is now made

permanent.
Upon the finality of this Resolution, the Board of
Canvassers of the City of Makati shall
immediately reconvene and, on the basis of the
completed canvass of election returns, determine
the winner out of the remaining qualified
candidates, who shall be immediately be
proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders
dated May 15, 1995 and June 2, 1995, as well as the resolution
dated June 2, 1995 issued by the COMELEC en banc. Petitioner's
raises the following errors for consideration, to wit:
A
THE COMELEC HAS NO JURISDICTION TO
DETERMINE AND ADJUDGE THE
DISQUALIFICATION ISSUE INVOLVING
CONGRESSIONAL CANDIDATES AFTER THE
MAY 8, 1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED TO AND
LODGE EXCLUSIVELY WITH THE HOUSE OF
REPRESENTATIVE ELECTORAL TRIBUNAL

CEASED IN THE INSTANT CASE AFTER THE

ELECTIONS, AND THE REMEDY/IES
AVAILABLE TO THE ADVERSE PARTIES LIE/S
IN ANOTHER FORUM WHICH, IT IS
SUBMITTED, IS THE HRET CONSISTENT WITH
SECTION 17, ARTICLE VI OF THE 1987
CONSTITUTION
C
THE COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION WHEN IT PROCEEDED TO
PROMULGATE ITS QUESTIONED DECISION
(ANNEX "C", PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF
JURISDICTION HAS TO BE JUDICIOUSLY
REVIEWED AGAIN,
ASSUMING ARGUENDO THAT THE COMELEC
HAS JURISDICTION, THE COMELEC
COMMITTED GRAVE ABUSE OF DISCRETION,
AND SERIOUS ERROR IN DIRECTING
WITHOUT NOTICE THE SUSPENSION OF THE
PROCLAMATION OF THE PETITIONER AS THE
WINNING CONGRESSIONAL CANDIDATE AND
DESPITE THE MINISTERIAL NATURE OF SUCH
DUTY TO PROCLAIM (PENDING THE FINALITY
OF THE DISQUALIFICATION CASE AGAINST
THE PETITIONER) IF ONLY NOT TO THWART
THE PEOPLE'S WILL.

B
D
ASSUMING ARGUENDO THAT THE COMELEC
HAS JURISDICTION, SAID JURISDICTION

THE COMELEC'S FINDING OF NONCOMPLIANCE WITH THE RESIDENCY

REQUIREMENT OF ONE YEAR AGAINST THE
PETITIONER IS CONTRARY TO EVIDENCE
AND TO APPLICABLE LAWS AND
JURISPRUDENCE.

CANDIDATE OR PERSON WHO WAS

REPUDIATED BY THE ELECTORATE IS A
LOSER AND CANNOT BE PROCLAIMED AS
SUBSTITUTE
WINNER. 15
I

E
IN ANY CASE, THE COMELEC CRITICALLY
ERRED IN FAILING TO APPRECIATE THE
LEGAL IMPOSSIBILITY OF ENFORCING THE
ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY
CREATED POLITICAL DISTRICTS WHICH
WERE ONLY EXISTING FOR LESS THAN A
YEAR AT THE TIME OF THE ELECTION AND
BARELY FOUR MONTHS IN THE CASE OF
PETITIONER'S DISTRICT IN MAKATI OF
CONGRESSIONAL.
F
THE COMELEC COMMITTED SERIOUS ERROR
AMOUNTING TO LACK OF JURISDICTION
WHEN IT ORDERED THE BOARD OF
CANVASSERS TO "DETERMINE AND
PROCLAIM THE WINNER OUT OF THE
REMAINING QUALIFIED CANDIDATES" AFTER
THE ERRONEOUS DISQUALIFICATION OF
YOUR PETITIONER IN THAT SUCH DIRECTIVE
IS IN TOTAL DISREGARD OF THE WELL
SETTLED DOCTRINE THAT A SECOND PLACE

In his first three assignments of error, petitioner vigorously

contends that after the May 8, 1995 elections, the COMELEC lost
its jurisdiction over the question of petitioner's qualifications to run
for member of the House of Representatives. He claims that
jurisdiction over the petition for disqualification is exclusively
lodged with the House of Representatives Electoral Tribunal
(HRET). Given the yet unresolved question of jurisdiction,
petitioner avers that the COMELEC committed serious error and
grave abuse of discretion in directing the suspension of his
proclamation as the winning candidate in the Second
Congressional District of Makati City. We disagree.
Petitioner conveniently confuses the distinction between an
unproclaimed candidate to the House of Representatives and a
member of the same. Obtaining the highest number of votes in an
election does not automatically vest the position in the winning
candidate. Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives
shall have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election,
returns and qualifications of their respective
Members.

Under the above-stated provision, the electoral tribunal clearly

assumes jurisdiction over all contests relative to the election,
returns and qualifications of candidates for either the Senate or
the House only when the latter become members of either the
Senate or the House of Representatives. A candidate who has
not been proclaimed 16 and who has not taken his oath of office
cannot be said to be a member of the House of Representatives
subject to Section. 17 of the Constitution. While the proclamation of a
winning candidate in an election is ministerial, B.P. 881 in conjunction
with Sec 6 of R.A. 6646 allows suspension of proclamation under
circumstances mentioned therein. Thus, petitioner's contention that
"after the conduct of the election and (petitioner) has been
established the winner of the electoral exercise from the moment of
election, the COMELEC is automatically divested of authority to pass
upon the question of qualification" finds no basis, because
even after the elections the COMELEC is empowered by Section 6
(in relation to Section 7) of R.A. 6646 to continue to hear and decide
questions relating to qualifications of candidates Section 6 states:
Sec. 6. Effect of Disqualification Case. Any
candidate, who has been declared by final
judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final
judgment before an election to be disqualified and
he is voted for and receives the winning number
of votes in such election, the Court or
Commission shall continue with the trial and
hearing of the action, inquiry or protest and, upon
motion of the complainant or any intervenor, may
during the pendency thereof order the suspension
of the proclamation of such candidate whenever
the evidence of guilt is strong.

Under the above-quoted provision, not only is a disqualification

case against a candidate allowed to continue after the election
(and does not oust the COMELEC of its jurisdiction), but his
obtaining the highest number of votes will not result in the
suspension or termination of the proceedings against him when
the evidence of guilt is strong. While the phrase "when the
evidence of guilt is strong" seems to suggest that the provisions
of Section 6 ought to be applicable only to disqualification cases
under Section 68 of the Omnibus Election Code, Section 7 of
R.A. 6646 allows the application of the provisions of Section 6 to
cases involving disqualification based on ineligibility under
Section 78 of B.P. 881. Section 7 states:
Sec. 7. Petition to Deny Due Course or to Cancel
a Certificate of Candidacy. The procedure
hereinabove provided shall apply to petition to
deny due course to or cancel a certificate of
candidacy based on Sec. 78 of Batas
Pambansa 881.
II
We agree with COMELEC's contention that in order that petitioner
could qualify as a candidate for Representative of the Second
District of Makati City the latter "must prove that he has
established not just residence but domicileof choice. 17
The Constitution requires that a person seeking election to the
House of Representatives should be a resident of the district in
which he seeks election for a period of not less than one (l) year
prior to the elections. 18 Residence, for election law purposes, has a
settled meaning in our jurisdiction.

In Co v. Electoral Tribunal of the House of Representatives 19 this

Court held that the term "residence" has always been understood as
synonymous with "domicile" not only under the previous
Constitutions but also under the 1987 Constitution. The Court there
held: 20
The deliberations of the Constitutional
Commission reveal that the meaning of
residence vis-a-vis the qualifications of a
candidate for Congress continues to remain the
same as that of domicile, to wit:
Mr. Nolledo: With respect to
Section 5, I remember that in the
1971 Constitutional Convention,
there was an attempt to require
residence in the place not less
than one year immediately
preceding the day of elections. So
my question is: What is the
Committee's concept of domicile
or constructive residence?
Mr. Davide: Madame President,
insofar as the regular members of
the National Assembly are
concerned, the proposed section
merely provides, among others,
and a resident thereof', that is, in
the district, for a period of not less
than one year preceding the day
of the election. This was in effect
lifted from the 1973

Constitution, the interpretation

given to it was domicile (emphasis
ours) Records of the 1987
Constitutional Convention, Vol. II,
July 22, 1986, p. 87).
xxx xxx xxx
Mrs. Rosario Braid: The next
question is on section 7, page 2. I
think Commissioner Nolledo has
raised the same point that
"resident" has been interpreted at
times as a matter of intention
rather than actual residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would
the gentlemen consider at the
proper time to go back to actual
residence rather than mere
intention to reside?
Mr. De los Reyes: But We might
encounter some difficulty
especially considering that the
provision in the Constitution in the
Article on Suffrage says that
Filipinos living abroad may vote as
enacted by law. So, we have to
stick to the original concept that it
should be by domicile and not

physical and actual residence.

(Records of the 1987
Constitutional Commission, Vol. II,
July 22, 1986, p. 110).
The framers of the Constitution adhered to the
earlier definition given to the word "residence"
which regarded it as having the same meaning
as domicile.
Clearly, the place "where a party actually or constructively has his
permanent home," 21 where he, no matter where he may be found at
any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the Constitution refers when it speaks of
residence for the purposes of election law. The manifest purpose of
this deviation from the usual conceptions of residency in law as
explained in Gallego vs. Vera at 22 is "to exclude strangers or
newcomers unfamiliar with the conditions and needs of the
community" from taking advantage of favorable circumstances
existing in that community for electoral gain. While there is nothing
wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the
essence of representation, which is to place through the assent of
voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency
mandated by law for him to qualify. That purpose could be obviously
best met by individuals who have either had actual residence in the
area for a given period or who have been domiciled in the same area
either by origin or by choice. It would, therefore, be imperative for
this Court to inquire into the threshold question as to whether or not
petitioner actually was a resident for a period of one year in the area
now encompassed by the Second Legislative District of Makati at the
time of his election or whether or not he was domiciled in the same.

As found by the COMELEC en banc petitioner in his Certificate of

Candidacy for the May 11, 1992 elections, indicated not only that
he was a resident of San Jose, Concepcion, Tarlac in 1992 but
that he was a resident of the same for 52 years immediately
preceding that election. 23 At the time, his certificate indicated that
he was also a registered voter of the same district. 24 His birth
certificate places Concepcion, Tarlac as the birthplace of both of his
parents Benigno and Aurora. 25 Thus, from data furnished by
petitioner himself to the COMELEC at various times during his
political career, what stands consistently clear and unassailable is
that this domicile of origin of record up to the time of filing of his most
recent certificate of candidacy for the 1995 elections was
Concepcion, Tarlac.
Petitioner's alleged connection with the Second District of Makati
City is an alleged lease agreement of condominium unit in the
area. As the COMELEC, in its disputed Resolution noted:
The intention not to establish a permanent home
in Makati City is evident in his leasing a
condominium unit instead of buying one. While a
lease contract maybe indicative of respondent's
intention to reside in Makati City it does not
engender the kind of permanency required to
prove abandonment of one's
original domicile especially since, by its terms, it is
only for a period of two (2) years, and respondent
Aquino himself testified that his intention was
really for only one (l) year because he has other
"residences" in Manila or Quezon City. 26
While property ownership is not and should never be an indicia of
the right to vote or to be voted upon, the fact that petitioner
himself claims that he has other residences in Metro Manila

coupled with the short length of time he claims to be a resident of

the condominium unit in Makati (and the fact, of his stated
domicile in Tarlac) "indicate that the sole purpose of (petitioner) in
transferring his physical residence" 27 is not to acquire's new
residence ordomicile "but only to qualify as a candidate for
Representative of the Second District of Makati City." 28 The absence
of clear and positive proof showing a successful abandonment
of domicile under the conditions stated above, the lack of
identification sentimental, actual or otherwise with the area,
and the suspicious circumstances under which the lease agreement
was effected all belie petitioner's claim of residency for the period
required by the Constitution, in the Second District of Makati. As the
COMELEC en banc emphatically pointed out:
[T]he lease agreement was executed mainly to
support the one year residence requirement as a
qualification for a candidate of Representative, by
establishing a commencement date of his
residence. If a perfectly valid lease agreement
cannot, by itself establish; a domicile of choice,
this particular lease agreement cannot do better . 29
Moreover, his assertion that he has transferred his domicile from
Tarlac to Makati is a bare assertion which is hardly supported by
the facts in the case at bench. Domicile of origin is not easily lost.
To successfully effect a change of domicile, petitioner must prove
an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with
the purpose. 30 These requirements are hardly met by the evidence
adduced in support of petitioner's claims of a change
of domicile from Tarlac to the Second District of Makati. In the
absence of clear and positive proof, the domicile of origin be deemed
to continue requirements are hardly met by the evidence adduced in

support of petitioner's claims of a change of domicile from Tarlac to

the Second District of Makati. In the absence of clear and positive
proof, the domicile of origin should be deemed to continue.

Finally, petitioner's submission that it would be legally impossible

to impose the one year residency requirement in a newly created
political district is specious and lacks basis in logic. A new political
district is not created out of thin air. It is carved out from part of a
real and existing geographic area, in this case the old Municipality
of Makati. That people actually lived or were domiciled in the area
encompassed by the new Second District cannot be denied.
Modern-day carpetbaggers cannot be allowed take advantage of
the creation of new political districts by suddenly transplanting
themselves in such new districts, prejudicing their genuine
residents in the process of taking advantage of existing conditions
in these areas. It will be noted, as COMELEC did in its assailed
resolution, that petitioner was disqualified from running in the
Senate because of the constitutional two-term limit, and had to
shop around for a place where he could run for public office.
Nothing wrong with that, but he must first prove with reasonable
certainty that he has effected a change of residence for election
law purposes for the period required by law. This he has not
effectively done.
III
The next issue here is whether or not the COMELEC erred in
issuing it Order instructing the Board of Canvassers of Makati
City to proclaim as winner the candidate receiving the next higher
number of votes. The answer must be in the negative.
To contend that Syjuco should be proclaimed because he was the
"first" among the qualified candidates in the May 8, 1995

elections is to misconstrue the nature of the democratic electoral

process and the sociological and psychological underpinnings
behind voters' preferences. The result suggested by private
respondent would lead not only to our reversing the doctrines
firmly entrenched in the two cases of Labo vs. Comelec 31 but also
to a massive disenfranchisement of the thousands of voters who cast
their vote in favor of a candidate they believed could be validly voted
for during the elections. Had petitioner been disqualified before the
elections, the choice, moreover, would have been different. The
votes for Aquino given the acrimony which attended the campaign,
would not have automatically gone to second placer Syjuco. The
nature of the playing field would have substantially changed. To
simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the
voter. The second placer is just that, a second placer. He lost the
elections. He was repudiated by either a majority or plurality of
voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified
candidate, the conditions would have substantially changed. We are
not prepared to extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our country
has swung from one end to the other. In the early case of Topacio
v. Paredes. 32 we declared as valid, votes cast in favor of a
disqualified, ineligilble or dead candidate provided the people who
voted for such candidate believed in good faith that at the time of the
elections said candidate was either qualified, eligible or alive. The
votes cast in favor of a disqualified, ineligible or dead candidate who
obtained the next higher number of votes cannot be proclaimed as
winner. According to this Court in the said case, "there is not, strictly
speaking, a contest, that wreath of victory cannot be transferred from
an ineligible candidate to any other candidate when the sole question
is the eligibility of the one receiving the plurality of the legally cast
ballots."

Then in Ticson v. Comelec, 33 this Court held that votes cast in favor
of a non-candidate in view of his unlawful change of party affiliation
(which was then a ground for disqualification) cannot be considered
in the canvassing of election returns and the votes fall into the
category of invalid and nonexistent votes because a disqualified
candidate is no candidate at all and is not a candidate in the eyes of
the law. As a result, this Court upheld the proclamation of the only
candidate left in the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling in Topacio
v. Paredes that the candidate who lost in an election cannot be
proclaimed the winner in the event the candidate who ran for the
portion is ineligible. We held in Geronimo:
[I]t would be extremely repugnant to the basic
concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the
majority or plurality of votes is proclaimed a
winner and imposed as the representative of a
constituency, the majority of which have positively
declared through their ballots that they do not
choose him.
Sound policy dictates that public elective offices
are filled by those who have received the highest
number of votes cast in the election for that office,
and it is fundamental idea in all republican forms
of government that no one can be declared
elected and no measure can be declared carried
unless he or it receives a majority or plurality of
the legal votes cast in the elections. (20 Corpus
Juris 2nd, S 243, p. 676.)

However, in Santos v. Comelec 35 we made a turnabout from our

previous ruling in Geronimo v. Ramos and pronounced that "votes
cast for a disqualified candidate fall within the category of invalid or
non-existent votes because a disqualified candidate is no candidate
at all in the eyes of the law," reverting to our earlier ruling in Ticson
v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella
v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and
upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to
the effect that the ineligibility of a candidate receiving the next higher
number of votes to be declared elected, and that a minority or
defeated candidate cannot be declared elected to the office. In these
cases, we put emphasis on our pronouncement in Geronimo
v. Ramos that:
The fact that a candidate who obtained the
highest number of votes is later declared to be
disqualified or not eligible for the office to which
he was elected does not necessarily entitle the
candidate who obtained the second highest
number of votes to be declared the winner of the
elective office. The votes cast for a dead,
disqualified, or non-eligible person may be valid to
vote the winner into office or maintain him there.
However, in the absence of a statute which clearly
asserts a contrary political and legislative policy
on the matter, if the votes were cast in sincere
belief that candidate was alive, qualified, or
eligible; they should not be treated as stray, void
or meaningless.
Synthesizing these rulings we declared in the latest case of Labo,
Jr. v. COMELEC that: 39

While Ortega may have garnered the second

highest number of votes for the office of city
mayor, the fact remains that he was not the
choice of the sovereign will. Petitioner Labo was
overwhelmingly voted by the electorate for the
office of mayor in the belief that he was then
qualified to serve the people of Baguio City and
his subsequent disqualification does not make
respondent Ortega the mayor-elect. This is the
import of the recent case of Abella
v. Comelec (201 SCRA 253 [1991]), wherein we
held that:
While it is true that SPC No. 88546 was originally a petition to
deny due course to the certificate
of candidacy of Larrazabal and
was filed before Larrazabal could
be proclaimed the fact remains
that the local elections of Feb. 1,
1988 in the province of
Leyte proceeded with Larrazabal
considered as a bona fide
candidate. The voters of the
province voted for her in the
sincere belief that she was a
qualified candidate for the position
of governor. Her votes was
counted and she obtained the
highest number of votes. The net
effect is that petitioner lost in the
election. He was repudiated by the
electorate. . . What matters is

that in the event a candidate for

an elected position who is voted
for and who obtains the highest
number of votes is disqualified for
not possessing the eligibility,
requirements at the time of the
election as provided by law, the
candidate who obtains the second
highest number of votes for the
same position cannot assume the
vacated position. (Emphasis
supplied).
Our ruling in Abella applies squarely to the case
at bar and we see no compelling reason to depart
therefrom. Like Abella, petitioner Ortega lost in the
election. He was repudiated by the electorate. He
was obviously not the choice of the people of
Baguio City.
Thus, while respondent Ortega (G.R. No. 105111)
originally filed a disqualification case with the
Comelec (docketed as SPA-92-029) seeking to
deny due course to petitioner's (Labo's)
candidacy, the same did not deter the people of
Baguio City from voting for petitioner Labo, who,
by then, was allowed by the respondent Comelec
to be voted upon, the resolution for his
disqualification having yet to attain the degree of
finality (Sec. 78, Omnibus Election Code).
And in the earlier case of Labo v. Comelec.
(supra), We held:

Finally, there is the question of

whether or not the private
respondent, who filed the quo
warranto petition, can replace the
petitioner as mayor. He cannot.
The simple reason is that as he
obtained only the second highest
number of votes in the election, he
was obviously not the choice of
the people of Baguio City.
The latest ruling of the Court in
this issue is Santos
v. Commission on Election, (137
SCRA 740) decided in 1985. In
that case, the candidate who
placed second was proclaimed
elected after the votes for his
winning rival, who was disqualified
as a turncoat and considered a
non-candidate, were all
disregarded as stray. In effect, the
second placer won by default.
That decision was supported by
eight members of the Court then
(Cuevas J., ponente, with
Makasiar, Concepcion, Jr.,
Escolin, Relova, De la Fuente,
Alampay, and Aquino, JJ.,
concurring) with three dissenting
(Teehankee, actingC.J., Abad
Santos and Melencio-Herrera) and
another two reserving their votes

(Plana and Gutierrez, Jr.). One

was on official leave
(Fernando, C.J.)
Re-examining that decision, the Court finds, and
so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Santos (136 SCRA
435), which represents the more logical and
democratic rule. That case, which reiterated the
doctrine first announced in 1912 in Topacio
vs.Paredes (23 Phil. 238) was supported by ten
members of the Court. . . .
The rule, therefore, is: the ineligibility of a
candidate receiving majority votes does not entitle
the eligible candidate receiving the next highest
number of votes to be declared elected. A minority
or defeated candidate cannot be deemed elected
to the office.
Indeed, this has been the rule in the United States
since 1849 (State ex rel. Dunning v. Giles, 52 Am.
Dec. 149).
It is therefore incorrect to argue that since a
candidate has been disqualified, the votes
intended for the disqualified candidate should, in
effect, be considered null and void. This would
amount to disenfranchising the electorate in
whom, sovereignty resides. At the risk of being
repetitious, the people of Baguio City opted to
elect petitioner Labo bona fide without any
intention to missapply their franchise, and in the

honest belief that Labo was then qualified to be

the person to whom they would entrust the
exercise of the powers of the government.
Unfortunately, petitioner Labo turned out to be
disqualified and cannot assume the office.
Whether or not the candidate whom the majority
voted for can or cannot be installed, under no
circumstances can a minority or defeated
candidate be deemed elected to the office. Surely,
the 12,602 votes cast for petitioner Ortega is not a
larger number than the 27,471 votes cast for
petitioner Labo (as certified by the Election
Registrar of Baguio City; rollo, p. 109; G.R. No.
105111).
This, it bears repeating, expresses the more logical and
democratic view. We cannot, in another shift of the pendulum,
subscribe to the contention that the runner-up in an election in
which the winner has been disqualified is actually the winner
among the remaining qualified candidates because this clearly
represents a minority view supported only by a scattered number
of obscure American state and English court decisions. 40 These
decisions neglect the possibility that the runner-up, though obviously
qualified, could receive votes so measly and insignificant in number
that the votes they receive would be tantamount to rejection.
Theoretically, the "second placer" could receive just one vote. In
such a case, it is absurd to proclaim the totally repudiated candidate
as the voters' "choice." Moreover, even in instances where the votes
received by the second placer may not be considered numerically
insignificant, voters preferences are nonetheless so volatile and
unpredictable that the result among qualified candidates, should the
equation change because of the disqualification of an ineligible
candidate, would not be self-evident. Absence of the apparent

though ineligible winner among the choices could lead to a shifting of

votes to candidates other than the second placer. By any
mathematical formulation, the runner-up in an election cannot be
construed to have obtained a majority or plurality of votes cast where
an "ineligible" candidate has garnered either a majority or plurality of
the votes.

In fine, we are left with no choice but to affirm the COMELEC's

conclusion declaring herein petitioner ineligible for the elective
position of Representative of Makati City's Second District on the
basis of respondent commission's finding that petitioner lacks the
one year residence in the district mandated by the 1987
Constitution. A democratic government is necessarily a
government of laws. In a republican government those laws are
themselves ordained by the people. Through their
representatives, they dictate the qualifications necessary for
service in government positions. And as petitioner clearly lacks
one of the essential qualifications for running for membership in
the House of Representatives, not even the will of a majority or
plurality of the voters of the Second District of Makati City would
substitute for a requirement mandated by the fundamental law
itself.
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED. Our Order restraining respondent
COMELEC from proclaiming the candidate garnering the next
highest number of votes in the congressional elections for the
Second District of Makati City is made PERMANENT.
SO ORDERED.

OCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870

Petitioner,
- versus DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
Respondents.
x-----------------------------------------------x
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
Petitioner,
- versus -

DANGEROUS DRUGS BOARD and

PHILIPPINE DRUG ENFORCEMENT
AGENCY,
Respondents.
x-----------------------------------------------x
AQUILINO Q. PIMENTEL, JR., G.R. No. 161658
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
COMMISSION ON ELECTIONS, Promulgated:
Respondent.
November 3, 2008
x----------------------------------------------------------------------------------------x
DECISION

known as the Comprehensive Dangerous Drugs Act of

2002, insofar as it requires mandatory drug testing of
candidates for public office, students of secondary and
tertiary schools, officers and employees of public and
private offices, and persons charged before the
prosecutors office with certain offenses, among other
personalities, is put in issue.
As far as pertinent, the challenged section reads
as follows:
SEC.
36. Authorized
Drug
Testing.Authorized drug testing shall be
done by any government forensic
laboratories or by any of the drug testing
laboratories accredited and monitored by
the DOH to safeguard the quality of the
test results. x x x The drug testing shall
employ, among others, two (2) testing
methods, the screening test which will
determine the positive result as well as
the type of drug used and the
confirmatory test which will confirm a
positive screening test. x x x The
following shall be subjected to undergo
drug testing:
xxxx

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of
Section 36 of Republic Act No. (RA) 9165, otherwise

(c) Students of secondary and

tertiary schools.Students of secondary
and tertiary schools shall, pursuant to the
related rules and regulations as contained

in the schools student handbook and with

notice to the parents, undergo a random
drug testing x x x;
(d) Officers and employees of
public and private offices.Officers and
employees of public and private offices,
whether domestic or overseas, shall be
subjected to undergo a random drug test
as contained in the companys work rules
and regulations, x x x for purposes of
reducing the risk in the workplace. Any
officer or employee found positive for use
of dangerous drugs shall be dealt with
administratively which shall be a ground
for suspension or termination, subject to
the provisions of Article 282 of the Labor
Code and pertinent provisions of the Civil
Service Law;
xxxx
(f) All persons charged before the
prosecutors office with a criminal offense
having
an
imposable
penalty
of
imprisonment of not less than six (6)
years and one (1) day shall undergo a
mandatory drug test;

(g) All candidates for public office whether

appointed or elected both in the national
or local government shall undergo a
mandatory drug test.

In addition to the above stated penalties

in this Section, those found to be positive
for dangerous drugs use shall be subject
to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v.

Commission on Elections)
On December 23, 2003, the Commission on Elections
(COMELEC) issued Resolution No. 6486, prescribing the
rules and regulations on the mandatory drug testing of
candidates for public office in connection with the May
10,

2004 synchronized

national

and

local

elections. The pertinent portions of the said resolution

read as follows:
WHEREAS, Section 36 (g) of Republic Act
No. 9165 provides:
SEC. 36. Authorized Drug Testing.x x x
xxxx
(g) All candidates for public office x x x
both
in
the
national
or
local
government shall
undergo
a
mandatory drug test.
WHEREAS, Section 1, Article XI of the
1987 Constitution provides that public
officers and employees must at all times

be accountable to the people, serve them

with utmost responsibility, integrity,
loyalty and efficiency;
WHEREAS, by requiring candidates to
undergo mandatory drug test, the public
will know the quality of candidates they
are electing and they will be assured that
only those who can serve with utmost
responsibility, integrity, loyalty, and
efficiency would be elected x x x.
NOW
THEREFORE, The
[COMELEC],
pursuant to the authority vested in it
under the Constitution, Batas Pambansa
Blg. 881 (Omnibus Election Code), [RA]
9165 and other election laws, RESOLVED
to promulgate, as it hereby promulgates,
the following rules and regulations on the
conduct of mandatory drug testing to
candidates for public office[:]

and employees concerned shall submit to

the Law Department two (2) separate lists
of candidates. The first list shall consist of
those candidates who complied with the
mandatory drug test while the second list
shall consist of those candidates who
failed to comply x x x.
SEC. 4. Preparation and publication of
names of candidates.Before the start of
the campaign period, the [COMELEC]
shall prepare two separate lists of
candidates. The first list shall consist of
those candidates who complied with the
mandatory drug test while the second list
shall consist of those candidates who
failed to comply with said drug test. x x x
SEC. 5. Effect of failure to undergo
mandatory drug test and file drug test
certificate.No person elected to any
public office shall enter upon the duties of
his office until he has undergone
mandatory drug test and filed with the
offices enumerated under Section 2
hereof the drug test certificate herein
required. (Emphasis supplied.)

SECTION 1. Coverage.All candidates for

public office, both national and local,
in the May 10, 2004 Synchronized
National and Local Elections shall
undergo
mandatory
drug
test
in
government forensic laboratories or any
drug testing laboratories monitored and
accredited by the Department of Health.

Petitioner Aquilino Q. Pimentel, Jr., a senator of the

SEC. 3. x x x

Republic and a candidate for re-election in the May 10,

On March 25, 2004, in addition to the

drug
certificates
filed
with
their
respective offices, the Comelec Offices

2004 elections,[1] filed a Petition for Certiorari and

Prohibition under Rule 65.In it, he seeks (1) to nullify
Sec. 36(g) of RA 9165 and COMELEC Resolution No.

6486

dated

December

23,

2003

for

being

be certified as drug free. He adds that there is no

unconstitutional in that they impose a qualification for

provision in the Constitution authorizing the Congress

candidates for senators in addition to those already

or COMELEC to expand the qualification requirements

provided for in the 1987 Constitution; and (2) to enjoin

of candidates for senator.

the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3,

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Article VI of the Constitution, which states:

In its Petition for Prohibition under Rule 65, petitioner
Social Justice Society (SJS), a registered political party,

SECTION 3. No person shall be a

Senator unless he is a natural-born citizen
of the Philippines, and, on the day of the
election, is at least thirty-five years of
age, able to read and write, a registered
voter, and a resident of the Philippines for
not less than two years immediately
preceding the day of the election.

seeks to prohibit the Dangerous Drugs Board (DDB)

and the Philippine Drug Enforcement Agency (PDEA)
from enforcing paragraphs (c), (d), (f), and (g) of Sec.
36

of

RA

9165

constitutionally

on

the

infirm.

ground

For

one,

that

they

are

the

provisions

constitute undue delegation of legislative power when

they
According to Pimentel, the Constitution only prescribes
a maximum of five (5) qualifications for one to be a
candidate for, elected to, and be a member of the
Senate. He says that both the Congress and COMELEC,
by requiring, via RA 9165 and Resolution No. 6486, a
senatorial

aspirant,

among

other

candidates,

to

undergo a mandatory drug test, create an additional

qualification that all candidates for senator must first

give

employers

unbridled
to

discretion

determine

the

to

schools

manner

of

and
drug

testing. For another, the provisions trench in the equal

protection clause inasmuch as they can be used to
harass

student

or

an

employee

deemed

undesirable. And for a third, a persons constitutional

right against unreasonable searches is also breached
by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v.

Dangerous
Drugs Board and Philippine Drug Enforcement Agency)

fide controversy which involves the statute sought to

be reviewed.[3] But even with the presence of an actual
case or controversy, the Court may refuse to exercise

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and

taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and
(g) of RA 9165 be struck down as unconstitutional for
infringing on the constitutional right to privacy, the
right against unreasonable search and seizure, and the
right against self-incrimination, and for being contrary
to the due process and equal protection guarantees.

judicial review unless the constitutional question is

brought before it by a party having the requisite
standing to challenge it.[4] To have standing, one must
establish that he or she has 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. [5]
The rule on standing, however, is a matter of
procedure; hence, it can be relaxed for non-traditional
plaintiffs,

The Issue on Locus Standi

First off, we shall address the justiciability of the
cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents
DDB and PDEA assert, SJS and Laserna failed to allege
any

incident

constitutional

amounting
rights

to

mentioned

violation
in

their

of

the

separate

petitions.[2]

only

be

exercised

in

connection

with

a bona

ordinary

citizens,

taxpayers,

and

legislators when the public interest so requires, such

as when the matter is of transcendental importance, of
overarching significance to society, or of paramount
public interest.[6] There is no doubt that Pimentel, as
senator of the Philippines and candidate for the May
10, 2004 elections, possesses the requisite standing
since he has substantial interests in the subject matter
of

It is basic that the power of judicial review can

like

the

petition,

among

other

preliminary

considerations. Regarding SJS and Laserna, this Court

is wont to relax the

rule on locus standi owing

primarily to the transcendental importance and the

paramount public interest involved in the enforcement

on nuisance candidates, a candidate for senator needs

of Sec. 36 of RA 9165.

only to meet the qualifications laid down in Sec. 3, Art.

The Consolidated Issues

VI of the Constitution, to wit: (1) citizenship, (2) voter

registration,

The principal issues before us are as follows:

(3)

residency. Beyond

literacy,
these

(4)

age,

stated

and

(5)

qualification

requirements, candidates for senator need not possess

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution

any other qualification to run for senator and be voted

No.

for

upon and elected as member of the Senate. The

candidates for senator? Corollarily, can Congress enact

Congress cannot validly amend or otherwise modify

a law prescribing qualifications for candidates for

these qualification standards, as it cannot disregard,

senator in addition to those laid down by the

evade,

Constitution? and

mandate,[7] or alter or enlarge the Constitution.

6486

impose

an

additional

qualification

or

weaken

the

force

of

constitutional

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA
9165

unconstitutional?

Specifically,

do

these

Pimentels contention is well-taken. Accordingly,

paragraphs violate the right to privacy, the right

Sec. 36(g) of RA 9165 should be, as it is hereby

against unreasonable searches and seizure, and the

declared as, unconstitutional. It is basic that if a law or

equal protection clause? Or do they constitute undue

an administrative rule violates any norm of the

delegation of legislative power?

Constitution, that issuance is null and void and has no

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

effect. The Constitution is the basic law to which all

laws must conform; no act shall be valid if it conflicts
with the Constitution.[8] In the discharge of their
defined

functions,

the

three

departments

of

In essence, Pimentel claims that Sec. 36(g) of

government have no choice but to yield obedience to

RA 9165 and COMELEC Resolution No. 6486 illegally

the commands of the Constitution.Whatever limits it

impose an additional qualification on candidates for

imposes must be observed.[9]

senator. He points out that, subject to the provisions

Congress inherent legislative powers, broad as

they may be, are subject to certain limitations. As

Constitution

prescribing

the

qualifications

of

candidates for senators.

early as 1927, in Government v. Springer, the Court

has defined, in the abstract, the limits on legislative
power in the following wise:

In the same vein, the COMELEC cannot, in the

guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec.

Someone has said that the powers of the

legislative
department
of
the
Government, like the boundaries of the
ocean, are unlimited. In constitutional
governments, however, as well as
governments acting under delegated
authority, the powers of each of the
departments x x x are limited and
confined within the four walls of the
constitution or the charter, and each
department can only exercise such
powers as are necessarily implied from
the given powers. The Constitution is the
shore of legislative authority against
which the waves of legislative enactment
may dash, but over which it cannot leap.

36(g), validly impose qualifications on candidates for

senator in addition to what the Constitution prescribes.
If Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to be
sure, is also without such power. The right of a citizen
in the democratic process of election should not be
defeated by unwarranted impositions of requirement
not otherwise specified in the Constitution. [13]
Sec. 36(g) of RA 9165, as sought to be
implemented by the assailed COMELEC resolution,
effectively enlarges the qualification requirements

[10]

enumerated in the Sec. 3, Art. VI of the Constitution.

As couched, said Sec. 36(g) unmistakably requires a

Thus, legislative power remains limited in the

sense

it

obviously as a pre-condition to the validity of a

constitutional limitations which circumscribe both the

certificate of candidacy for senator or, with like effect,

exercise of the power itself and the allowable subjects

a condition sine qua non to be voted upon and, if

legislation.

is

[11]

subject

The

to

substantive

candidate for senator to be certified illegal-drug clean,

and

of

that

substantive

constitutional

proper, be proclaimed as senator-elect. The COMELEC

limitations are chiefly found in the Bill of Rights [12] and

resolution completes the chain with the proviso that

other provisions, such as Sec. 3, Art. VI of the

[n]o person elected to any public office shall enter

upon the duties of his office until he has undergone

and revolve around the election and the assumption of

mandatory drug test. Viewed, therefore, in its proper

public office of the candidates. Any other construal

context, Sec. 36(g) of RA 9165 and the implementing

would reduce the mandatory nature of Sec. 36(g) of RA

COMELEC Resolution add another qualification layer to

9165 into a pure jargon without meaning and effect

what the 1987 Constitution, at the minimum, requires

whatsoever.

for membership in the Senate. Whether or not the

While it is anti-climactic to state it at this

drug-free bar set up under the challenged provision is

juncture, COMELEC Resolution No. 6486 is no longer

to be hurdled before or after election is really of no

enforceable, for by its terms, it was intended to cover

moment, as getting elected would be of little value if

only the May 10, 2004 synchronized elections and the

one cannot assume office for non-compliance with the

candidates

drug-testing requirement.

Nonetheless, to obviate repetition, the Court deems it

running

in

that

electoral

event.

appropriate to review and rule, as it hereby rules, on

It may of course be argued, in defense of the

its validity as an implementing issuance.

validity of Sec. 36(g) of RA 9165, that the provision

does not expressly state that non-compliance with the

It ought to be made abundantly clear, however,

drug test imposition is a disqualifying factor or would

that the unconstitutionality of Sec. 36(g) of RA 9165 is

work

rooted on its having infringed the constitutional

to

nullify

certificate

of

candidacy.

This

argument may be accorded plausibility if the drug test

provision

defining

the

qualification

or

eligibility

requirement is optional. But the particular section of

requirements for one aspiring to run for and serve as

the law, without exception, made drug-testing on

senator.

those covered mandatory, necessarily suggesting that

the obstinate ones shall have to suffer the adverse
consequences for
command.

And

not adhering
since

the

to

the

provision

statutory

deals

with

candidates for public office, it stands to reason that

the adverse consequence adverted to can only refer to

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g]
of RA 9165)

The drug test prescribed under Sec. 36(c), (d),

and (f) of RA 9165 for secondary and tertiary level
students and public and private employees, while
mandatory,

is

random

and

suspicionless

arrangement. The objective is to stamp out illegal drug

and safeguard in the process the well being of [the]
citizenry, particularly the youth, from the harmful
effects of dangerous drugs. This statutory purpose, per
the policy-declaration portion of the law, can be
achieved via the pursuit by the state of an intensive
and unrelenting campaign against the trafficking and
use of dangerous drugs x x x through an integrated
system of planning, implementation and enforcement
of anti-drug abuse policies, programs and projects.
[14]

The

primary

legislative

intent

is

not

criminal

prosecution, as those found positive for illegal drug

use as a result of this random testing are not
necessarily treated as criminals. They may even be
exempt from criminal liability should the illegal drug

himself/herself or through his/her parent,

[close relatives] x x x apply to the Board x
x x for treatment and rehabilitation of the
drug dependency. Upon such application,
the Board shall bring forth the matter to
the Court which shall order that the
applicant
be
examined
for
drug
dependency. If the examination x x x
results in the certification that the
applicant is a drug dependent, he/she
shall be ordered by the Court to undergo
treatment and rehabilitation in a Center
designated by the Board x x x.
xxxx
Sec.
55. Exemption
from
the
Criminal Liability Under the Voluntary
Submission Program.A drug dependent
under the voluntary submission program,
who
is
finally
discharged
from
confinement, shall be exempt from the
criminal liability under Section 15 of this
Act subject to the following conditions:
xxxx

user consent to undergo rehabilitation. Secs. 54 and

55 of RA 9165 are clear on this point:

School children, the US Supreme Court noted,

are most vulnerable to the physical, psychological, and

Sec. 54. Voluntary Submission of a

Drug
Dependent
to
Confinement,
Treatment and Rehabilitation.A drug
dependent or any person who violates
Section 15 of this Act may, by

addictive effects of drugs. Maturing nervous systems

of the young are more critically impaired by intoxicants
and are more inclined to drug dependency. Their
recovery is also at a depressingly low rate.[15]

In Vernonia,
The

right

to

privacy

has

been

accorded

school

in Vernonia, Oregon wanted

to

administrators
address

the

drug

recognition in this jurisdiction as a facet of the right

menace in their respective institutions following the

protected by the guarantee against unreasonable

discovery

search and seizure

[16]

under Sec. 2, Art. III

[17]

of

frequent

drug

use

by

school

of the

athletes. After consultation with the parents, they

Constitution. But while the right to privacy has long

required random urinalysis drug testing for the schools

come into its own, this case appears to be the first

athletes. James Acton, a high school student, was

time that the validity of a state-decreed search or

denied participation in the football program after he

intrusion through the medium of mandatory random

refused

drug testing among students and employees is, in this

testing. Acton forthwith sued, claiming that the schools

jurisdiction, made the focal point. Thus, the issue

drug testing policy violated, inter alia, the Fourth

tendered in these proceedings is veritably one of first

Amendment[19] of the US Constitution.

to

undertake

the

urinalysis

drug

impression.
The US Supreme Court, in fashioning a solution
US jurisprudence is, however, a rich source of

to the issues raised in Vernonia, considered the

persuasive jurisprudence. With respect to random drug

following: (1) schools stand in loco parentis over their

testing

the

students; (2) school children, while not shedding their

v.

constitutional rights at the school gate, have less

of

privacy rights; (3) athletes have less privacy rights

Independent School District No. 92 of Pottawatomie

than non-athletes since the former observe communal

County, et al. v. Earls, et al. (Board of Education),

undress before and after sports events; (4) by joining

[18]

both fairly pertinent US Supreme Court-decided

the sports activity, the athletes voluntarily subjected

cases involving the constitutionality of governmental

themselves to a higher degree of school supervision

search.

and regulation; (5) requiring urine samples does not

among

teachings

school

children,

of Vernonia School

Acton (Vernonia)

and Board

we

turn

to

District 47J
of

Education

invade a students privacy since a student need not

undress for this kind of drug testing; and (6) there is

need for the drug testing because of the dangerous

that the school could implement its random drug-

effects of illegal drugs on the young. The US Supreme

testing policy, the Court hinted that such a test was a

Court held that the policy constituted reasonable

kind of search in which even a reasonable parent

search under the Fourth[20] and 14th Amendments and

might need to engage.

declared the random drug-testing policy constitutional.

In sum, what can reasonably be deduced from the
In Board of Education, the Board of Education of

above two cases and applied to this jurisdiction are:

a school in Tecumseh, Oklahoma required a drug test

(1) schools and their administrators stand in loco

for high school students desiring to join extra-

parentis with respect to their students; (2) minor

curricular activities. Lindsay Earls, a member of the

students have contextually fewer rights than an adult,

show choir, marching band, and academic team

and are subject to the custody and supervision of their

declined to undergo a drug test and averred that the

parents, guardians, and schools; (3) schools, acting in

drug-testing policy made to apply to non-athletes

loco parentis, have a duty to safeguard the health and

violated the Fourth and 14th Amendments. As Earls

well-being of their students and may adopt such

argued, unlike athletes who routinely undergo physical

measures

examinations and undress before their peers in locker

discharge such duty; and (4) schools have the right to

rooms, non-athletes are entitled to more privacy.

impose conditions on applicants for admission that are

as

may

reasonably

be

necessary

to

fair, just, and non-discriminatory.

The US Supreme Court, citing Vernonia, upheld

Guided by Vernonia and Board of Education, the Court

the constitutionality of drug testing even among non-

is of the view and so holds that the provisions of RA

athletes

custodial

9165 requiring mandatory, random, and suspicionless

responsibility and authority. In so ruling, said court

drug testing of students are constitutional. Indeed, it is

made no distinction between a non-athlete and an

within the prerogative of educational institutions to

athlete. It ratiocinated that schools and teachers act in

require, as a condition for admission, compliance with

place of the parents with a similar interest and duty of

reasonable

safeguarding the health of the students. And in holding

policies. To be sure, the right to enroll is not absolute;

on

the

basis

of

the

schools

school

rules

and

regulations

and

it

is

subject

to

fair,

reasonable,

and

equitable

requirements.

Just as in the case of secondary and tertiary

level students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and

The Court can take judicial notice of the

employees of public and private offices is justifiable,

proliferation of prohibited drugs in the country that

albeit not exactly for the same reason. The Court notes

threatens the well-being of the people, [21] particularly

in this regard that petitioner SJS, other than saying

the youth and school children who usually end up as

that subjecting almost everybody to drug testing,

victims. Accordingly, and until a more effective method

without

is conceptualized and put in motion, a random drug

unwarranted

testing of students in secondary and tertiary schools is

privacy,[23] has failed to show how the mandatory,

not only acceptable but may even be necessary if the

random, and suspicionless drug testing under Sec.

safety

population,

36(c) and (d) of RA 9165 violates the right to privacy

doubtless a legitimate concern of the government, are

and constitutes unlawful and/or unconsented search

to

under Art. III, Secs. 1 and 2 of the Constitution.

be

and

interest

promoted

of
and

the

student

protected. To

borrow

probable

cause,

intrusion

of

is
the

unreasonable,
individual

right

an
to

from Vernonia, [d]eterring drug use by our Nations

[24]

schoolchildren is as important as enhancing efficient

sweeping, and gratuitous and does not merit serious

enforcement

consideration.

of

the

Nations

laws

against

the

importation of drugs; the necessity for the State to act

Petitioner Lasernas lament is just as simplistic,

Consider

what

he

wrote

without

elaboration:

is magnified by the fact that the effects of a druginfested school are visited not just upon the users, but
upon the entire student body and faculty. [22] Needless
to stress, the random testing scheme provided under
the law argues against the idea that the testing aims
to incriminate unsuspecting individual students.

The US Supreme Court and US

Circuit Courts of Appeals have made
various rulings on the constitutionality of
mandatory drug tests in the school and
the workplaces. The US courts have been
consistent in their rulings that the
mandatory drug tests violate a citizens
constitutional right to privacy and right
against unreasonable search and seizure.

They are quoted extensively hereinbelow.

[25]

promotion of some compelling state interest. [31] In the

criminal context, reasonableness requires showing of

The essence of privacy is the right to be left

alone.[26] In context, the right to privacy means the
right to be free from unwarranted exploitation of ones
person or from intrusion into ones private activities in
such a way as to cause humiliation to a persons
ordinary sensibilities. [27] And while there has been
general agreement as to the basic function of the
guarantee against unwarranted search, translation of
the abstract prohibition against unreasonable searches

probable cause to be personally determined by a

judge.

from C. Camara v. Municipal Court.[28] Authorities are

agreed though that the right to privacy yields to
certain paramount rights of the public and defers to
the states exercise of police power.[29]
As the warrantless clause of Sec. 2, Art III of the
Constitution is couched and as has been held,
reasonableness is the touchstone of the validity of a
government search or intrusion. [30] And whether a
search at issue hews to the reasonableness standard is
judged by the balancing of the government-mandated
intrusion on the individuals privacy interest against the

that

the

drug-testing

policy

for

employeesand students for that matterunder RA 9165

is in the nature of administrative search needing what
was referred to in Vernonia as swift and informal
disciplinary procedures, the probable-cause standard is
not required or even practicable. Be that as it may, the
review should focus on the reasonableness of the
challenged administrative search in question.

and seizures into workable broad guidelines for the

decision of particular cases is a difficult task, to borrow

Given

The first factor to consider in the matter of

reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search
within

the

meaning

of

Sec.

2,

Art.

III

of

the

Constitution, intrudes. In this case, the office or

workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the
reasonableness of drug testing requirement. The
employees privacy interest in an office is to a large
extent circumscribed by the companys work policies,
the collective bargaining agreement, if any, entered
into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline
and

efficiency

in

the

workplace.

Their

privacy

expectation in a regulated office environment is, in

shall be subjected to random drug test as contained in

fine, reduced; and a degree of impingement upon such

the companys work rules and regulations x x x for

privacy has been upheld.

purposes of reducing the risk in the work place.

Just as defining as the first factor is the

For another, the random drug testing shall be

character of the intrusion authorized by the challenged

undertaken under conditions calculated to protect as

law. Reduced to a question form, is the scope of the

much as possible the employees privacy and dignity.

search or intrusion clearly set forth, or, as formulated

As to the mechanics of the test, the law specifies that

in Ople v. Torres, is the enabling law authorizing a

the procedure shall employ two testing methods, i.e.,

search narrowly drawn or narrowly focused? [32]

the screening test and the confirmatory test, doubtless

to ensure as much as possible the trustworthiness of

The

poser

should

the

the results. But the more important consideration lies

affirmative. For one, Sec. 36 of RA 9165 and its

in the fact that the test shall be conducted by trained

implementing rules and regulations (IRR), as couched,

professionals

contain

towards

monitored by the Department of Health (DOH) to

preventing a situation that would unduly embarrass

safeguard against results tampering and to ensure an

the employees or place them under a humiliating

accurate chain of custody.[33] In addition, the IRR issued

experience. While every officer and employee in a

by the DOH provides that access to the drug results

private

deemed

shall be on the need to know basis; [34] that the drug

forewarned that he or she may be a possible subject of

test result and the records shall be [kept] confidential

a drug test, nobody is really singled out in advance for

subject to the usual accepted practices to protect the

drug testing. The goal is to discourage drug use by not

confidentiality of the test results. [35] Notably, RA 9165

telling in advance anyone when and who is to be

does not oblige the employer concerned to report to

tested. And as may be observed, Sec. 36(d) of RA 9165

the prosecuting agencies any information or evidence

itself

relating

provisions

be

answered

specifically

directed

establishment is under the

prescribes

what,

in Ople,

is

law

in

narrowing

ingredient by providing that the employees concerned

in

to

access-controlled

the

laboratories

violation

of

the Comprehensive Dangerous Drugs Act received as a

result of the operation of the drug testing. All told,

this modern-day scourge. Drug enforcement agencies

therefore, the intrusion into the employees privacy,

perceive a mandatory random drug test to be an

under RA 9165, is accompanied by proper safeguards,

effective way of preventing and deterring drug use

particularly against embarrassing leakages of test

among employees in private offices, the threat of

results, and is relatively minimal.

detection by random testing being higher than other

modes. The Court holds that the chosen method is a

To reiterate, RA 9165 was enacted as a measure

reasonable and enough means to lick the problem.

to stamp out illegal drug in the country and thus

protect the well-being of the citizens, especially the

Taking into account the foregoing factors, i.e.,

youth, from the deleterious effects of dangerous drugs.

the reduced expectation of privacy on the part of the

The law intends to achieve this through the medium,

employees, the compelling state concern likely to be

among others, of promoting and resolutely pursuing a

met by the search, and the well-defined limits set forth

national drug abuse policy in the workplace via a

in the law to properly guide authorities in the conduct

mandatory random drug test.[36] To the Court, the need

of the random testing, we hold that the challenged

for drug testing to at least minimize illegal drug use is

drug test requirement is, under the limited context of

substantial enough to override the individuals privacy

the case, reasonable and, ergo, constitutional.

interest under the premises. The Court can consider

Like their counterparts in the private sector,

that the illegal drug menace cuts across gender, age

government officials and employees also labor under

group, and social- economic lines. And it may not be

reasonable supervision and restrictions imposed by the

amiss to state that the sale, manufacture, or trafficking

Civil Service law and other laws on public officers, all

of illegal drugs, with their ready market, would be an

enacted to promote a high standard of ethics in the

investors dream were it not for the illegal and immoral

public service.[37] And if RA 9165 passes the norm of

components of

reasonableness

any

of

such activities. The

drug

for

private

employees,

the

more

problem has hardly abated since the martial law public

reason that it should pass the test for civil servants,

execution of a notorious drug trafficker. The state can

who, by constitutional command, are required to be

no longer assume a laid back stance with respect to

accountable at all times to the people and to serve

them with utmost responsibility and efficiency.[38]

Lest it be overlooked, Sec. 94 of RA 9165

charges the DDB to issue, in consultation with the
DOH,

Department

of

the

Local

Government,

is

undue

Department of Labor and Employment, among other

of power hardly commends itself for

agencies, the IRR necessary to enforce the law. In net

concurrence. Contrary to its position, the provision in

effect then, the participation of schools and offices in

question is not so extensively drawn as to give

the drug testing scheme shall always be subject to the

unbridled

delegation

objectionable

testing. Sec.

36

schools and employers have unchecked discretion to

expressly provides how drug testing for students of

determine how often, under what conditions, and

secondary and tertiary schools and officers/employees

where the drug tests shall be conducted.

manner

public/private

offices

of

and

of

IRR of RA 9165. It is, therefore, incorrect to say that

of

schools

ground

and

to

the

to

the

Education,

employers

determine

options

on

of

and

Petitioner SJS next posture that Sec. 36 of RA

9165

Department

Interior

drug

should

be

conducted. It

enumerates the persons who shall undergo drug

The validity of delegating legislative power is

testing. In the case of students, the testing shall be in

now a quiet area in the constitutional landscape. [39] In

accordance with the school rules as contained in the

the face of the increasing complexity of the task of the

student handbook and with notice to parents. On the

government

part of officers/employees, the testing shall take into

legislature to cope directly with the many problems

account the companys work rules. In either case, the

demanding its attention, resort to delegation of power,

random procedure shall be observed, meaning that the

or entrusting to administrative agencies the power of

persons to be subjected to drug test shall be picked by

subordinate legislation, has become imperative, as

chance or in an unplanned way. And in all cases,

here.

and

the

increasing

inability

of

the

safeguards against misusing and compromising the

confidentiality of the test results are established.

Laserna Petition (Constitutionality of Sec. 36[c],

[d],
[f], and [g] of RA 9165)

defendants in a criminal complaint.They are not

Unlike the situation covered by Sec. 36(c) and

randomly

picked;

neither

are

they

beyond

(d) of RA 9165, the Court finds no valid justification for

suspicion. When persons suspected of committing a

mandatory drug testing for persons accused of crimes.

crime are charged, they are singled out and are

In the case of students, the constitutional viability of

impleaded

the mandatory, random, and suspicionless drug testing

charged, by the bare fact of being haled before the

for students emanates primarily from the waiver by

prosecutors

the students of their right to privacy when they seek

themselves to drug testing, if that be the case, do not

entry

voluntarily

necessarily consent to the procedure, let alone waive

submitting their persons to the parental authority of

their right to privacy.[40] To impose mandatory drug

school authorities. In the case of private and public

testing on the accused is a blatant attempt to harness

employees,

the

a medical test as a tool for criminal prosecution,

mandatory, random, and suspicionless drug testing

contrary to the stated objectives of RA 9165. Drug

proceeds from the reasonableness of the drug test

testing in this case would violate a persons right to

policy and requirement.

privacy guaranteed under Sec. 2, Art. III of the

to

the

school,

the

and

from

constitutional

their

soundness

of

against

their

office

and

will. The

persons

peaceably

thus

submitting

Constitution. Worse still, the accused persons are

We find the situation entirely different in the

veritably forced to incriminate themselves.

case of persons charged before the public prosecutors

office with criminal offenses punishable with six (6)
years and one (1) day imprisonment. The operative
concepts

in

the

mandatory

drug

testing

are

randomness and suspicionless. In the case of persons

charged with a crime before the prosecutors office, a

WHEREFORE, the Court resolves to GRANT the

petition

in

36(g) of RA

G.R.

No.

161658

and

9165 and COMELEC

6486 asUNCONSTITUTIONAL;

declares Sec.

Resolution

and

No.

to PARTIALLY

mandatory drug testing can never be random or

GRANT the petition in G.R. Nos. 157870 and 158633

suspicionless. The ideas of randomness and being

by

suspicionless are antithetical to their being made

declaring Sec.

36(c) and (d) of RA

9165 CONSTITUTIONAL,

but

declaring

its Sec.

36(f) UNCONSTITUTIONAL. All concerned agencies

are,

accordingly,

permanently

enjoined

from

implementing Sec. 36(f) and (g) of RA 9165. No

costs.

SO ORDERED.
G.R. No. 96859 October 15, 1991
MOHAMMAD ALI DIMAPORO, petitioner,
vs.
HON. RAMON V. MITRA, JR., Speaker, House of
Representatives, and (Hon. QUIRINO D. ABAD SANTOS, JR.)
HON. CAMILO L. SABIO Secretary, House of
representatives, respondent.
Rilloraza, Africa, De Ocampo & Africa and Enrique M. Fernando
for petitioner.

DAVIDE, JR., J.:p

Petitioner Mohamad Ali Dimaporo was elected Representative for
the Second Legislative District of Lanao del Sur during the 1987
congressional elections. He took his oath of office on 9 January
1987 and thereafter performed the duties and enjoyed the rights
and privileges pertaining thereto.

On 15 January 1990, petitioner filed with the Commission on

Elections a Certificate of Candidacy for the position of Regional
Governor of the Autonomous Region in Muslim Mindanao. The
election was scheduled for 17 February 1990.
Upon being informed of this development by the Commission on
Elections, respondents Speaker and Secretary of the House of
Representatives excluded petitioner's name from the Roll of
Members of the House of Representatives pursuant to Section
67, Article IX of the Omnibus Election Code. As reported by the Speaker in
the session of 9 February 1990:

The Order of Business today carries a

communication from the Commission on Elections
which states that the Honorable Mohammad Ali
Dimaporo of the Second District of Lanao del Sur
filed a certificate of candidacy for the regional
elections in Muslim Mindanao on February 17,
1990. The House Secretariat, performing an
administrative act, did not include the name of the
Honorable Ali Dimaporo in the Rolls pursuant to
the provision of the Election Code, Article IX,
Section 67, which states: Any elective official
whether national or local running for any office
other than the one which he is holding in a
permanent capacity except for President and
Vice-President shall be consideredipso
facto resigned from his office upon the filing of his
certificate of candidacy.' The word 'ipso facto'is
defined in Words and Phrases as by the very act
itself by the mere act. And therefore, by the very
act of the (sic) filing his certificate of candidacy,
the Honorable Ali Dimaporo removed himself from
the Rolls of the House of Representatives; and,

therefore, his name has not been carried in

today's Roll and will not be carried in the future
Rolls of the House. ...
Having lost in the autonomous region elections, petitioner, in a
letter dated 28 June 1990 and addressed to respondent Speaker,
expressed his intention "to resume performing my duties and
functions as elected Member of Congress." The record does not
indicate what action was taken on this communication, but it is
apparent that petitioner failed in his bid to regain his seat in
Congress since this petition praying for such relief was
subsequently filed on 31 January 1991.
In this petition, it is alleged that following the dropping of his name
from the Roll, petitioner was excluded from all proceedings of the
House of Representatives; he was not paid the emoluments due
his office; his staff was dismissed and disbanded; and his office
suites were occupied by other persons. In effect, he was virtually
barred and excluded from performing his duties and from
exercising his rights and privileges as the duly elected and
qualified congressman from his district.
Petitioner admits that he filed a Certificate of Candidacy for the
position of Regional Governor of Muslim Mindanao. He, however,
maintains that he did not thereby lose his seat as congressman
because Section 67, Article IX of B.P. Blg. 881 is not operative
under the present Constitution, being contrary thereto, and
therefore not applicable to the present members of Congress.
In support of his contention, petitioner points out that the term of
office of members of the House of Representatives, as well as the
grounds by which the incumbency of said members may be
shortened, are provided for in the Constitution. Section 2, Article

XVIII thereof provides that "the Senators, Members of the House

of Representatives and the local officials first elected under this
Constitution shall serve until noon of June 30, 1992;" while
Section 7, Article VI states: "The Members of the House of
Representatives shall be elected for a term of three years which
shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election." On the other
hand, the grounds by which such term may be shortened may be
summarized as follows:
a) Section 13, Article VI: Forfeiture of his seat by
holding any other office or employment in the
government or any subdivision, agency or
instrumentality thereof, including governmentowned or controlled corporations or subsidiaries;
b) Section 16 (3): Expulsion as a disciplinary
action for disorderly behavior;
c) Section 17: Disqualification as determined by
resolution of the Electoral Tribunal in an election
contest; and,
d) Section 7, par. 2: Voluntary renunciation of
office.
He asserts that under the rule expressio unius est exclusio
alterius, Section 67, Article IX of B.P. Blg. 881 is repugnant to
these constitutional provisions in that it provides for the
shortening of a congressman's term of office on a ground not
provided for in the Constitution. For if it were the intention of the
framers to include the provisions of Section 67, Article IX of B.P.
Blg. 881 as among the means by which the term of a

Congressman may be shortened, it would have been a very

simple matter to incorporate it in the present Constitution. They
did not do so. On the contrary, the Constitutional Commission
only reaffirmed the grounds previously found in the 1935 and
1973 Constitutions and deliberately omitted the ground provided
in Section 67, Article IX of B.P. Blg. 881.
On the premise that the provision of law relied upon by
respondents in excluding him from the Roll of Members is
contrary to the present Constitution, petitioner consequently
concludes that respondents acted without authority. He further
maintains that respondents' so-called "administrative act" of
striking out his name is ineffective in terminating his term as
Congressman. Neither can it be justified as an interpretation of
the Constitutional provision on voluntary renunciation of office as
only the courts may interpret laws. Moreover, he claims that he
cannot be said to have forfeited his seat as it is only when a
congressman holds another office or employment that forfeiture is
decreed. Filing a certificate of candidacy is not equivalent to
holding another office or employment.
In sum, petitioner's demand that his rights as a duly elected
member of the House of Representatives be recognized, is
anchored on the negative view of the following issues raised in
this petition:
A.
IS SECTION 67, ARTICLE IX, OF B.P. BLG. 881
OPERATIVE UNDER THE PRESENT
CONSTITUTION?
B.

COULD THE RESPONDENT SPEAKER AND/OR

THE RESPONDENT SECRETARY, 'BY
ADMINISTRATIVE ACT', EXCLUDE THE
PETITIONER FROM THE ROLLS OF THE
HOUSE OF REPRESENTATIVES, THEREBY
PREVENTING HIM FROM EXERCISING HIS
FUNCTIONS AS CONGRESSMAN, AND
DEPRIVING HIM OF HIS RIGHTS AND
PRIVILEGES AS SUCH?
On the other hand, respondents through the Office of the Solicitor
General contend that Section 67, Article IX of B.P. Blg. 881 is still
operative under the present Constitution, as the voluntary act of
resignation contemplated in said Section 67 falls within the term
"voluntary renunciation" of office enunciated in par. 2, Section 7,
Article VI of the Constitution. That the ground provided in Section
67 is not included in the Constitution does not affect its validity as
the grounds mentioned therein are not exclusive. There are, in
addition, other modes of shortening the tenure of office of
Members of Congress, among which are resignation, death and
conviction of a crime which carries a penalty of disqualification to
hold public office.
Respondents assert that petitioner's filing of a Certificate of
Candidacy is an act of resignation which estops him from
claiming otherwise as he is presumed to be aware of existing
laws. They further maintain that their questioned "administrative
act" is a mere ministerial act which did not involve any
encroachment on judicial powers.
Section 67, Article IX of B.P. Blg. 881 reads:

Any elective official whether national or local

running for any office other than the one which he
is holding in a permanent capacity except for
President and Vice-President shall be
considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.
The precursor of this provision is the last paragraph of Section 2
of C.A. No. 666, which reads:
Any elective provincial, municipal, or city official
running for an office, other than the one for which
he has been lastly elected, shall be considered
resigned from his office from the moment of the
filing of his certificate of candidacy.
Section 27 of Article II of Republic Act No. 180 reiterated this rule
in this wise:
Sec. 27. Candidate holding office. Any elective
provincial, municipal or city official running for an
office, other than the one which he is actually
holding, shall be considered resigned from
office from the moment of the filing of his
certificate of candidacy.
The 1971 Election Code imposed a similar proviso on local
elective officials as follows:
Sec. 24. Candidate holding elective office. Any
elective provincial, sub-provincial, city, municipal
or municipal district officer running for an office
other than the one which he is holding in a

permanent capacity shall be considered ipso

facto resigned from his office from the moment of
the filing of his certificate of candidacy.
Every elected official shall take his oath of office
on the day his term of office commences, or within
ten days after his proclamation if said
proclamation takes place after such day. His
failure to take his oath of office as herein provided
shall be considered forfeiture of his right to the
new office to which he has been elected unless
his failure is for a cause or causes beyond his
control.
The 1978 Election Code provided a different rule, thus:
Sec. 30. Candidates holding political offices.
Governors, mayors, members of various
sanggunians, or barangay officials, shall, upon
filing of a certificate of candidacy, be considered
on forced leave of absence from office.
It must be noted that only in B.P. Blg. 881 are members of the
legislature included in the enumeration of elective public officials
who are to be considered resigned from office from the moment
of the filing of their certificates of candidacy for another office,
except for President and Vice-President. The advocates of
Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881)
elucidated on the rationale of this inclusion, thus:
MR. PALMARES:

In the old Election Code, Your

Honor, in the 1971 Election Code,
the provision seems to be different
I think this is in Section 24 of
Article III.
Any elective provincial, subprovincial, city, municipal or
municipal district officer running
for an office other than the one
which he is holding in a permanent
capacity shall be considered ipso
facto resigned from his office from
the moment of the filing of his
certificate of candidacy.
May I know, Your Honor, what is
the reason of the Committee in
departing or changing these
provisions of Section 24 of the old
Election Code and just adopting
it en toto? Why do we have to
change it? What could possibly be
the reason behind it, or the
rationale behind it?
MR. PEREZ (L.):
I have already stated the rationale for this, Mr.
Speaker, but I don't mind repeating it. The
purpose is that the people must be given the right
to choose any official who belongs to, let us say,
to the Batasan if he wants to run for another

office. However, because of the practice in the

past where members of the legislature ran for
local offices, but did not assume the office,
because of that spectacle the impression is that
these officials were just trifling with the mandate
of the people. They have already obtained a
mandate to be a member of the legislature, and
they want to run for mayor or for governor and yet
when the people give them that mandate, they do
not comply with that latter mandate, but still
preferred (sic) to remain in the earlier mandate.
So we believe, Mr. Speaker, that the people's
latest mandate must be the one that will be given
due course. ...
Assemblyman Manuel M. Garcia, in answer to the query of
Assemblyman Arturo Tolentino on the constitutionality of Cabinet
Bill No. 2, said:
MR. GARCIA (M.M.):
Thank you, Mr. Speaker.
Mr. Speaker, on the part of the Committee, we
made this proposal based on constitutional
grounds. We did not propose this amendment
mainly on the rationale as stated by the
Gentlemen from Manila that the officials running
for office other than the ones they are holding will
be considered resignednot because of abuse of
facilities of power or the use of office facilities but
primarily because under our Constitution, we
have this new chapter on accountability of public

officers. Now, this was not in the 1935

Constitution. It states that (sic) Article XIII, Section
1 Public office is a public trust. Public officers
and employees shall serve with the highest
degree of responsibility, integrity, loyalty and
efficiency and shall remain accountable to the
people.
Now, what is the significance of this new provision
on accountability of public officers? This only
means that all elective public officials should
honor the mandate they have gotten from the
people. Thus, under our Constitution, it says that:
'Members of the Batasan shall serve for the term
of 6 years, in the case of local officials and 6
years in the case of barangay officials. Now, Mr.
Speaker, we have precisely included this as part
of the Omnibus Election Code because a Batasan
Member who hold (sic) himself out with the
people and seek (sic) their support and mandate
should not be allowed to deviate or allow himself
to run for any other position unless he
relinquishes or abandons his office. Because his
mandate to the people is to serve for 6 years.
Now, if you allow a Batasan or a governor or a
mayor who was mandated to serve for 6 years to
file for an office other than the one he was elected
to, then, that clearly shows that he has not (sic)
intention to service the mandate of the people
which was placed upon him and therefore he
should be considered ipso facto resigned. I think
more than anything that is the accountability that
the Constitution requires of elective public

officials. It is not because of the use or abuse of

powers or facilities of his office, but it is because
of the Constitution itself which I said under the
1973 Constitution called and inserted this new
chapter on accountability.
Now, argument was said that the mere filing is not
the intention to run. Now, what is it for? If a
Batasan Member files the certificate of candidacy,
that means that he does not want to serve,
otherwise, why should he file for an office other
than the one he was elected to? The mere fact
therefore of filing a certificate should be
considered the overt act of abandoning or
relinquishing his mandate to the people and that
he should therefore resign if he wants to seek
another position which he feels he could be of
better service.
As I said, Mr. Speaker, I disagree with the
statements of the Gentleman from Manila
because the basis of this Section 62 is the
constitutional provision not only of the fact that
Members of the Batasan and local officials should
serve the entire 6-year term for which we were
elected, but because of this new chapter on the
accountability of public officers not only to the
community which voted him to office, but primarily
because under this commentary on accountability
of public officers, the elective public officers must
serve their principal, the people, not their own
personal ambition. And that is the reason, Mr.
Speaker, why we opted to propose Section 62

where candidates or elective public officers

holding offices other than the one to which they
were elected, should be considered ipso
facto resigned from their office upon the filing of
the certificate of candidacy."
It cannot be gainsaid that the same constitutional basis for
Section 67, Article IX of B.P. Blg. 881 remains written in the 1987
Constitution. In fact, Section 1 of Article XI on "Accountability of
Public Officers" is more emphatic in stating:
Sec. 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead
modest lives.
Obviously then, petitioner's assumption that the questioned
statutory provision is no longer operative does not hold water. He
failed to discern that rather than cut short the term of office of
elective public officials, this statutory provision seeks to ensure
that such officials serve out their entire term of office by
discouraging them from running for another public office and
thereby cutting short their tenure by making it clear that should
they fail in their candidacy, they cannot go back to their former
position. This is consonant with the constitutional edict that all
public officials must serve the people with utmost loyalty and not
trifle with the mandate which they have received from their
constituents.
In theorizing that the provision under consideration cuts short the
term of office of a Member of Congress, petitioner seems to

confuse "term" with "tenure" of office. As succinctly distinguished

by the Solicitor General:
The term of office prescribed by the Constitution
may not be extended or shortened by the
legislature (22 R.C.L.), but the period during
which an officer actually holds the office (tenure)
may be affected by circumstances within or
beyond the power of said officer. Tenure may be
shorter than the term or it may not exist at all.
These situations will not change the duration of
the term of office (see Topacio Nueno vs. Angeles,
76 Phil 12).
Under the questioned provision, when an elective official covered
thereby files a certificate of candidacy for another office, he is
deemed to have voluntarily cut short his tenure, not his term. The
term remains and his successor, if any, is allowed to serve its
unexpired portion.
That the ground cited in Section 67, Article IX of B.P. Blg. 881 is
not mentioned in the Constitution itself as a mode of shortening
the tenure of office of members of Congress, does not preclude
its application to present members of Congress. Section 2 of
Article XI provides that "(t)he President, the Vice-President, the
Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be
removed from office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All other
public officers and employees may be removed from office as
provided by law, but not by impeachment. Such constitutional
expression clearly recognizes that the four (4) grounds found in

Article VI of the Constitution by which the tenure of a

Congressman may be shortened are not exclusive. As held in the
case of State ex rel. Berge vs. Lansing, the expression in the
constitution of the circumstances which shall bring about a
vacancy does not necessarily exclude all others. Neither does it
preclude the legislature from prescribing other grounds. Events
so enumerated in the constitution or statutes are merely
conditions the occurrence of any one of which the office shall
become vacant not as a penalty but simply as the legal effect of
any one of the events. And would it not be preposterous to say
that a congressman cannot die and cut his tenure because death
is not one of the grounds provided for in the Constitution? The
framers of our fundamental law never intended such absurdity.
The basic principle which underlies the entire field of legal
concepts pertaining to the validity of legislation is that by
enactment of legislation, a constitutional measure is presumed to
be created. This Court has enunciated the presumption in favor of
constitutionality of legislative enactment. To justify the nullification
of a law, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication. A
doubt, even if well-founded, does not suffice.
The maxim expressio unius est exclusio alterius is not to be
applied with the same rigor in construing a constitution as a
statute and only those things expressed in such positive
affirmative terms as plainly imply the negative of what is not
mentioned will be considered as inhibiting the power of
legislature. The maxim is only a rule of interpretation and not a
constitutional command. This maxim expresses a rule of
construction and serves only as an aid in discovering legislative
intent where such intent is not otherwise manifest.

Even then, the concept of voluntary renunciation of office under

Section 7, Article VI of the Constitution is broad enough to include
the situation envisioned in Section 67, Article IX of B.P. Blg. 881.
As discussed by the Constitutional Commissioners:

Is the Committee saying that the term voluntary

renunciation is more general than abandonment
and resignation?
MR. DAVIDE:

MR. MAAMBONG:
It is more general, more embracing.
Could I address the clarificatory question to the
Committee? The term 'voluntary renunciation'
does not only appear in Section 3; it appears in
Section 6.
MR. DAVIDE:

That the act, contemplated in Section 67, Article IX of B.P. Blg.

881, of filing a certificate of candidacy for another office
constitutes an overt, concrete act of voluntary renunciation of the
elective office presently being held is evident from this exchange
between then Members of Parliament Arturo Tolentino and Jose
Rono:

Yes.
MR. RONO:
MR. MAAMBONG:
It is also a recurring phrase all over the
constitution. Could the Committee please
enlighten us exactly what 'voluntary renunciation'
means? Is this akin to abandonment?

My reasonable ground is this: if you will make the

person ... my, shall we say, basis is that in one
case the person is intending to run for an office
which is different from his own, and therefore it
should be considered, at least from the legal
significance, an intention to relinquish his office.

MR. DAVIDE:
MR. TOLENTINO:
Abandonment is voluntary. In other words, he
cannot circumvent the restriction by merely
resigning at any given time on the second term.

Yes ...
MR. RONO:

MR. MAAMBONG:
And in the other, because he is running for the same position, it is
otherwise.

MR. TOLENTINO:
Yes, but what I cannot see is why are you going to
compel a person to quit an office which he is only
intending to leave? A relinquishment of office must
be clear, must be definite.
MR. RONO:
Yes, sir. That's precisely, Mr. Speaker, what I'm
saying that while I do not disagree with the
conclusion that the intention cannot be
enough, but I am saying that the filing of the
certificate of candidacy is an over act of such
intention. It's not just an intention; it's already
there.
In Monroy vs. Court of Appeals, a case involving Section 27 of
R.A. No. 180 above-quoted, this Court categorically pronounced
that "forfeiture (is) automatic and permanently effective upon the
filing of the certificate of candidacy for another office. Only
the moment and act of filing are considered. Once the certificate
is filed, the seat is forever forfeited and nothing save a new
election or appointment can restore the ousted official. Thus, as
We had occasion to remark, through Justice J.B.L. Reyes,
in Castro vs. Gatuslao:
... The wording of the law plainly indicates that
only the date of filing of the certificate of
candidacy should be taken into account. The law
does not make the forfeiture dependent upon
future contingencies, unforeseen and
unforeseeable, since the vacating is expressly

made as of the moment of the filing of the

certificate of candidacy. ...
As the mere act of filing the certificate of candidacy for another
office produces automatically the permanent forfeiture of the
elective position being presently held, it is not necessary, as
petitioner opines, that the other position be actually held. The
ground for forfeiture in Section 13, Article VI of the 1987
Constitution is different from the forfeiture decreed in Section 67,
Article IX of B.P. Blg. 881, which is actually a mode of voluntary
renunciation of office under Section 7, par. 2 of Article VI of the
Constitution.
The legal effects of filing a certificate of candidacy for another
office having been spelled out in Section 67, Article IX, B.P. Blg.
881 itself, no statutory interpretation was indulged in by
respondents Speaker and Secretary of the House of
Representatives in excluding petitioner's name from the Roll of
Members. The Speaker is the administrative head of the House of
Representatives and he exercises administrative powers and
functions attached to his office. As administrative officers, both
the Speaker and House Secretary-General perform ministerial
functions. It was their duty to remove petitioner's name from the
Roll considering the unequivocal tenor of Section 67, Article IX,
B.P. Blg. 881. When the Commission on Elections communicated
to the House of Representatives that petitioner had filed his
certificate of candidacy for regional governor of Muslim
Mindanao, respondents had no choice but to abide by the clear
and unmistakable legal effect of Section 67, Article IX of B.P. Blg.
881. It was their ministerial duty to do so. These officers cannot
refuse to perform their duty on the ground of an alleged invalidity
of the statute imposing the duty. The reason for this is obvious. It
might seriously hinder the transaction of public business if these

officers were to be permitted in all cases to question the

constitutionality of statutes and ordinances imposing duties upon
them and which have not judicially been declared
unconstitutional. Officers of the government from the highest to
the lowest are creatures of the law and are bound to obey it.
In conclusion, We reiterate the basic concept that a public office
is a public trust. It is created for the interest and benefit of the
people. As such, the holder thereof is subject to such regulations
and conditions as the law may impose and he cannot complain of
any restrictions which public policy may dictate on his office.
WHEREFORE, the instant petition is DISMISSED for lack of
merit.
SO ORDERED.
Narvasa, Cruz, Paras, Feleciano, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
Fernan, C.J., took no part.

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T.
PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and
RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr.

and Virgilio E. Acierto for petitioners.

BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise
known as the "Bases Conversion and Development Act of 1992,"
under which respondent Mayor Richard J. Gordon of Olongapo City
was appointed Chairman and Chief Executive Officer of the Subic
Bay Metropolitan Authority (SBMA), is challenged in this original
petition with prayer for prohibition, preliminary injunction and
temporary restraining order "to prevent useless and unnecessary
expenditures of public funds by way of salaries and other operational
expenses attached to the office . . . ." 2 Paragraph (d) reads
(d) Chairman administrator The President shall
appoint a professional manager as administrator
of the Subic Authority with a compensation to be
determined by the Board subject to the approval
of the Secretary of Budget, who shall be the ex
oficio chairman of the Board and who shall serve
as the chief executive officer of the Subic
Authority: Provided, however, That for the first
year of its operations from the effectivity of this
Act, the mayor of the City of Olongapo shall be
appointed as the chairman and chief executive
officer of the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S.
Facility at the Subic, Zambales, and officers and members of the
Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that theproviso in par. (d) of Sec. 13 herein-

above quoted in italics infringes on the following constitutional

and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be
eligible for appointment or designation in any capacity to any
public officer or position during his tenure," 3 because the City
Mayor of Olongapo City is an elective official and the subject posts
are public offices; (b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall . . . . appoint all other officers of
the Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to
appoint", 4 since it was Congress through the questioned proviso and
not the President who appointed the Mayor to the subject
posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code,
which says:
Sec. 261. Prohibited Acts. The following shall
be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new
position, promotion, or giving salary increases.
During the period of forty-five days before a
regular election and thirty days before a special
election, (1) any head, official or appointing officer
of a government office, agency or instrumentality,
whether national or local, including governmentowned or controlled corporations, who appoints or
hires any new employee, whether provisional,
temporary or casual, or creates and fills any new
position, except upon prior authority of the
Commission. The Commission shall not grant the
authority sought unless it is satisfied that the
position to be filled is essential to the proper
functioning of the office or agency concerned, and
that the position shall not be filled in a manner
that may influence the election. As an exception to

the foregoing provisions, a new employee may be

appointed in case of urgent
need:Provided, however, That notice of the
appointment shall be given to the Commission
within three days from the date of the
appointment. Any appointment or hiring in
violation of this provision shall be null and void.
(2) Any government official who promotes, or
gives any increase of salary or remuneration or
privilege to any government official or employee,
including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of respondent Gordon to the
subject posts made by respondent Executive Secretary on 3 April
1992 was within the prohibited 45-day period prior to the 11 May
1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d),
of R.A. 7227 which states, "Provided, however,That for the first
year of its operations from the effectivity of this Act, the mayor of
the City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority," violates the
constitutional proscription against appointment or designation of
elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for
appointment or designation in any capacity to any
public office or position during his tenure.

Unless otherwise allowed by law or by the primary

functions of his position, no appointive official
shall hold any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including governmentowned or controlled corporations or their
subsidiaries.
The section expresses the policy against the concentration of
several public positions in one person, so that a public officer or
employee may serve full-time with dedication and thus be efficient
in the delivery of public services. It is an affirmation that a public
office is a full-time job. Hence, a public officer or employee, like
the head of an executive department described in Civil Liberties
Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft
League of the Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be
allowed to attend to his duties and responsibilities without the
distraction of other governmental duties or employment. He should
be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in
haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic
idea really is to prevent a situation where a local elective official
will work for his appointment in an executive position in
government, and thus neglect his constituents . . . ." 7
In the case before us, the subject proviso directs the President to
appoint an elective official, i.e., the Mayor of Olongapo City, to
other government posts (as Chairman of the Board and Chief
Executive Officer of SBMA). Since this is precisely what the
constitutional proscription seeks to prevent, it needs no stretching
of the imagination to conclude that the proviso contravenes Sec.

7, first par., Art. IX-B, of the Constitution. Here, the fact that the
expertise of an elective official may be most beneficial to the
higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC)
permits the appointment of a local elective official to another post
if so allowed by law or by the primary functions of his office. 8 But,
the contention is fallacious. Section 94 of the LGC is not
determinative of the constitutionality of Sec. 13, par. (d), of R.A.
7227, for no legislative act can prevail over the fundamental law of
the land. Moreover, since the constitutionality of Sec. 94 of LGC is
not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we
invoke a practice otherwise unconstitutional as authority for its
validity.
In any case, the view that an elective official may be appointed to
another post if allowed by law or by the primary functions of his
office, ignores the clear-cut difference in the wording of the two
(2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes
holding of multiple offices by an appointiveofficial when allowed
by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any
exception to the rule against appointment or designation of
an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the
President as head of the economic and planning agency; 9 the
Vice-President, who may be appointed Member of the
Cabinet; 10 and, a member of Congress who may be designated ex
officio member of the Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec.
7, Art. IX-B, was not accidental when drawn, and not without

reason. It was purposely sought by the drafters of the Constitution

as shown in their deliberation, thus
MR. MONSOD. In other words, what then
Commissioner is saying, Mr. Presiding Officer, is
that the prohibition is more strict with respect to
elective officials, because in the case of
appointive officials, there may be a law that will
allow them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference,
because in the case of appointive officials, there
will be certain situations where the law should
allow them to hold some other positions. 12
The distinction being clear, the exemption allowed to appointive
officials in the second paragraph cannot be extended to elective
officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to
the position of Mayor of Olongapo City, hence, an excepted
circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 where we stated that the prohibition against the holding
of any other office or employment by the President, Vice-President,
Members of the Cabinet, and their deputies or assistants during their
tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not
comprehend additional duties and functions required by the primary
functions of the officials concerned, who are to perform them in an
ex officio capacity as provided by law, without receiving any
additional compensation therefor.
This argument is apparently based on a wrong premise.
Congress did not contemplate making the subject SBMA posts
as ex officio or automatically attached to the Office of the Mayor

of Olongapo City without need of appointment. The phrase "shall

be appointed" unquestionably shows the intent to make the
SBMA posts appointive and not merely adjunct to the post of
Mayor of Olongapo City. Had it been the legislative intent to make
the subject positions ex officio, Congress would have, at least,
avoided the word "appointed" and, instead, "ex officio" would
have been used. 14
Even in the Senate deliberations, the Senators were fully aware
that subject proviso may contravene Sec. 7, first par., Art. IX-B,
but they nevertheless passed the bill and decided to have the
controversy resolved by the courts. Indeed, the Senators would
not have been concerned with the effects of Sec. 7, first par., had
they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the
subject proviso was stated, Senator Rene Saguisag remarked
that "if the Conference Committee just said "the Mayor shall be
the Chairman" then that should foreclose the issue. It is a
legislative choice." 15 The Senator took a view that the constitutional
proscription against appointment of elective officials may have been
sidestepped if Congress attached the SBMA posts to the Mayor of
Olongapo City instead of directing the President to appoint him to the
post. Without passing upon this view of Senator Saguisag, it suffices
to state that Congress intended the posts to be appointive, thus
nibbling in the bud the argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila
Authority made by respondents cannot be applied to uphold the
constitutionality of the challenged proviso since it is not put in
issue in the present case. In the same vein, the argument that if
no elective official may be appointed or designated to another
post then Sec. 8, Art. IX-B, of the Constitution allowing him to
receive double compensation 16 would be useless, is non

sequitur since Sec. 8 does not affect the constitutionality of the

subject proviso. In any case, the Vice-President for example, an
elective official who may be appointed to a cabinet post under Sec.
3, Art. VII, may receive the compensation attached to the cabinet
position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the

appointing authority of the President. Section 13, par. (d), itself
vests in the President the power to appoint the Chairman of the
Board and the Chief Executive Officer of SBMA, although he
really has no choice under the law but to appoint the Mayor of
Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a
person, by the person or persons having authority therefor, to
discharge the duties of some office or trust," 17 or "[t]he selection or
designation of a person, by the person or persons having authority
therefor, to fill an office or public function and discharge the duties of
the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment
as "the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing
power necessarily exercises a discretion. According to Woodbury,
J., 20 "the choice of a person to fill an office constitutes the essence
of his appointment," 21 and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the
exercise of discretion." 22 In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23 we held:
The power to appoint is, in essence, discretionary.
The appointing power has the right of choice
which he may exercise freely according to his

judgment, deciding for himself who is best

qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of
the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to
appoint; it is not a ministerial act of issuing appointment papers to
the appointee. In other words, the choice of the appointee is a
fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to
appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress
can only be met by one individual, such enactment effectively
eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be
filled with a presidential appointee for the first year of its
operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only
one eligible, i.e., the incumbent Mayor of Olongapo City. Since
only one can qualify for the posts in question, the President is
precluded from exercising his discretion to choose whom to
appoint. Such supposed power of appointment, sans the
essential element of choice, is no power at all and goes against
the very nature itself of appointment.
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of operations of
SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the
President is a perfectly valid legislative act, the proviso limiting his
choice to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment
remains all throughout his tenure or during his incumbency, he
may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be
considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I
propose the substitution of the word "term" with
TENURE.

MR. FOZ. The effect of the proposed amendment

is to make possible for one to resign from his
position.
MR. DAVIDE. Yes, we should allow that
prerogative.
MR. FOZ. Resign from his position to accept an
executive position.
MR. DAVIDE. Besides, it may turn out in a given
case that because of, say, incapacity, he may
leave the service, but if he is prohibited from
being appointed within the term for which he was
elected, we may be depriving the government of
the needed expertise of an individual. 25
Consequently, as long as he is an incumbent, an elective official
remains ineligible for appointment to another public office.
Where, as in the case of respondent Gordon, an incumbent
elective official was, notwithstanding his ineligibility, appointed to
other government posts, he does not automatically forfeit his
elective office nor remove his ineligibility imposed by the
Constitution. On the contrary, since an incumbent elective official
is not eligible to the appointive position, his appointment or
designation thereto cannot be valid in view of his disqualification
or lack of eligibility. This provision should not be confused with
Sec. 13, Art. VI, of the Constitution where "(n)o Senator or
Member of the House of Representatives may hold any other
office or employment in the Government . . . during his term
without forfeiting his seat . . . ." The difference between the two
provisions is significant in the sense that incumbent national

legislators lose their elective posts only after they have been
appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be
appointed, thus running the risk of losing the elective post as well
as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . . The
effect is quite different where it is expressly provided by law that a
person holding one office shall be ineligible to another. Such a
provision is held to incapacitate the incumbent of an office from
accepting or holding a second office (State ex rel. Van Antwerp v
Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga
733, 61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65
NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State,
107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution,
or statutes declare that persons holding one office shall be ineligible
for election or appointment to another office, either generally or of a
certain kind, the prohibition has been held to incapacitate the
incumbent of the first office to hold the second so that any attempt to
hold the second is void (Ala. State ex rel. Van Antwerp v. Hogan,
218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for
appointment to the position of Chairman of the Board and Chief
Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City, and his
acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those
of a lawful officer, the law, upon principles of policy and justice,
will hold valid so far as they involve the interest of the public and
third persons, where the duties of the office were exercised . . . .
under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in

the electing or appointing body, or by reason of some defect or

irregularity in its exercise, such ineligibility, want of power or
defect being unknown to the public . . . . [or] under color of an
election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5
Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122
Mass, 445, 23 Am. Rep., 323)." 28
Conformably with our ruling in Civil Liberties Union, any and
all per diems, allowances and other emoluments which may have
been received by respondent Gordon pursuant to his appointment
may be retained by him.
The illegality of his appointment to the SBMA posts being now
evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said respondent
made pursuant thereto need no longer be discussed.
In thus concluding as we do, we can only share the lament of
Sen. Sotero Laurel which he expressed in the floor deliberations
of S.B. 1648, precursor of R.A. 7227, when he articulated

. . . . (much) as we would like to have the present

Mayor of Olongapo City as the Chief Executive of
this Authority that we are creating; (much) as I,
myself, would like to because I know the capacity,
integrity, industry and dedication of Mayor
Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we
cannot do it because of the constitutional
prohibition which is very clear. It says: "No
elective official shall be appointed or designated
to another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a
mountain amidst the strife of storms or a rock in the ocean amidst
the raging of the waves." 30 One of the characteristics of the
Constitution is permanence, i.e., "its capacity to resist capricious or
whimsical change dictated not by legitimate needs but only by
passing fancies, temporary passions or occasional infatuations of the
people with ideas or personalities . . . . Such a Constitution is not
likely to be easily tampered with to suit political expediency, personal
ambitions or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We
have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227,
which states: ". . . Provided, however, That for the first year of its
operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive
officer of the Subic Authority," is declared unconstitutional;
consequently, the appointment pursuant thereto of the Mayor of
Olongapo City, respondent Richard J. Gordon, is INVALID, hence
NULL and VOID.

However, all per diems, allowances and other emoluments

received by respondent Gordon, if any, as such Chairman and
Chief Executive Officer may be retained by him, and all acts
otherwise legitimate done by him in the exercise of his authority
as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.

DANTE V. LIBAN,

G.R. No. 175352

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

REYNALDO M. BERNARDO,
and SALVADOR M. VIARI,

Present:

Petitioners,

DECISION
PUNO, C.J.,
QUISUMBING,

CARPIO, J.:

YNARES-SANTIAGO,
CARPIO,
CORONA,

The Case

CARPIO MORALES,

- versus -

CHICO-NAZARIO,

This is a petition to declare Senator Richard J. Gordon

VELASCO, JR.,

(respondent) as having forfeited his seat in the Senate.

NACHURA,
LEONARDO-DE CASTRO,

The Facts

BRION,
PERALTA, and

Petitioners Dante V. Liban, Reynaldo M. Bernardo, and

BERSAMIN, JJ.

Salvador M. Viari (petitioners) filed with this Court

a Petition to Declare Richard J. Gordon as Having
Forfeited His Seat in the Senate. Petitioners are

officers of the Board of Directors of the Quezon City

Red Cross Chapter while respondent is Chairman of the
Philippine

National

Red

Cross

(PNRC)

Board

of

Governors.

During respondents incumbency as a member of the

Senate of the Philippines,[1] he was elected Chairman

Petitioners cite Camporedondo v. NLRC,[2] which held

that the PNRC is a government-owned or controlled
corporation. Petitioners claim that in accepting and
holding the position of Chairman of the PNRC Board of
Governors, respondent has automatically forfeited his
seat in the Senate, pursuant to Flores v. Drilon,[3] which
held that incumbent national legislators lose their
elective posts upon their appointment to another
government office.

of the PNRC during the 23 February 2006 meeting of

the PNRC Board of Governors. Petitioners allege that
by accepting the chairmanship of the PNRC Board of
Governors, respondent has ceased to be a member of
the Senate as provided in Section 13, Article VI of the
Constitution, which reads:

In his Comment, respondent asserts that petitioners

have no standing to file this petition which appears to
be an action for quo warranto, since the petition
alleges that respondent committed an act which, by
provision of law, constitutes a ground for forfeiture of
his public office. Petitioners do not claim to be entitled

SEC. 13. No Senator or Member of the

House of Representatives may hold any
other office or employment in the
Government, or any subdivision, agency,
or instrumentality thereof, including
government-owned
or
controlled
corporations or their subsidiaries, during
his term without forfeiting his seat.
Neither shall he be appointed to any
office which may have been created or
the emoluments thereof increased during
the term for which he was elected.

to the Senate office of respondent. Under Section 5,

Rule 66 of the Rules of Civil Procedure, only a person
claiming to be entitled to a public office usurped or
unlawfully held by another may bring an action for quo
warranto in his own name. If the petition is one for quo
warranto,

it

is

already

barred

by

prescription

since under Section 11, Rule 66 of the Rules of Civil

Procedure, the action should be commenced within
one year after the cause of the public officers
forfeiture of office. In this case, respondent has been

working as a Red Cross volunteer for the past 40

Respondent further insists that the PNRC is not a

years. Respondent was already Chairman of the PNRC

government-owned or controlled corporation and that

Board of Governors when he was elected Senator in

the prohibition under Section 13, Article VI of the

May 2004, having been elected Chairman in 2003 and

Constitution does not apply in the present case since

re-elected in 2005.

volunteer service to the PNRC is neither an office nor

an employment.

Respondent contends that even if the present petition

is treated as a taxpayers suit, petitioners cannot be

In their Reply, petitioners claim that their petition is

allowed to raise a constitutional question in the

neither an action for quo warranto nor an action for

absence of any claim that they suffered some actual

declaratory relief. Petitioners maintain that the present

damage or threatened injury as a result of the

petition is a taxpayers suit questioning the unlawful

allegedly

Furthermore,

disbursement of funds, considering that respondent

taxpayers are allowed to sue only when there is a

has been drawing his salaries and other compensation

claim of illegal disbursement of public funds, or that

as a Senator even if he is no longer entitled to his

public money is being diverted to any improper

office. Petitioners point out that this Court has

purpose,

jurisdiction over this petition since it involves a legal or

illegal

or

act

where

of

respondent.

petitioners

seek

to

restrain

respondent from enforcing an invalid law that results in

constitutional

wastage of public funds.

importance.

issue

which

is

of

The Issues
Respondent also maintains that if the petition is
treated as one for declaratory relief, this Court would
have no jurisdiction since original jurisdiction for
declaratory relief lies with the Regional Trial Court.

Petitioners raise the following issues:

transcendental

1. Whether the Philippine National Red

Cross (PNRC) is a government- owned
or controlled corporation;

2. Whether Section 13, Article VI of the

Philippine Constitution applies to the
case of respondent who is Chairman of
the PNRC and at the same time a
Member of the Senate;

office in a government-owned or controlled corporation

for purposes of the prohibition in Section 13, Article VI
of the Constitution.

The Courts Ruling

We find the petition without merit.

3.

4.

Whether respondent should be

automatically
removed
as
a
Senator pursuant to Section 13,
Article
VI
of
the
Philippine
Constitution; and

Whether petitioners may legally

institute
this
petition
against
respondent.[4]

The substantial issue boils down to whether the office

of the PNRC Chairman is a government office or an

Petitioners Have No Standing to File this

Petition

A careful reading of the petition reveals that it is an

action for quo warranto. Section 1, Rule 66 of the Rules
of Court provides:

Section 1. Action by Government against

individuals. An
action
for
the
usurpation of a public office, position
or franchise may be commenced by a
verified petition brought in the name
of the Republic of the Philippines
against:

(a) A person who usurps, intrudes into, or

unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act
which by provision of law, constitutes a ground
for the forfeiture of his office; or
(c) An association which acts as a corporation within
the Philippines without being legally incorporated or
without lawful authority so to act. (Emphasis supplied)

6. Since his election as Chairman of the PNRC Board of

Governors, which position he duly accepted,
respondent has been exercising the powers and
discharging the functions and duties of said office,
despite the fact that he is still a senator.
7. It is the respectful submission of the petitioner[s]
that by accepting the chairmanship of the Board
of Governors of the PNRC, respondent has
ceased to be a Member of the House of Senate
as provided inSection 13, Article VI of the
Philippine Constitution, x x x
xxxx

Petitioners allege in their petition that:

4. Respondent became the Chairman of
the PNRC when he was elected as such
during the First Regular Luncheon-Meeting
of the Board of Governors of the PNRC
held on February 23, 2006, the minutes of
which is hereto attached and made
integral part hereof as Annex A.
5. Respondent was elected as Chairman
of the PNRC Board of Governors, during
his incumbency as a Member of the
House of Senate of the Congress of the
Philippines, having been elected as such
during the national elections last May
2004.

10. It is respectfully submitted that in accepting the

position of Chairman of the Board of Governors
of the PNRC on February 23, 2006, respondent
has automatically forfeited his seat in the House
of Senate and, therefore, has long ceased to be
a Senator, pursuant to the ruling of this Honorable
Court in the case of FLORES, ET AL. VS. DRILON AND
GORDON, G.R. No. 104732, x x x
11. Despite the fact that he is no longer a senator,
respondent continues to act as such and still performs
the powers, functions and duties of a senator, contrary
to the constitution, law and jurisprudence.
12. Unless restrained, therefore, respondent will
continue to falsely act and represent himself as a
senator or member of the House of Senate, collecting
the salaries, emoluments and other compensations,

benefits and privileges appertaining and due only to

the legitimate senators, to the damage, great and
irreparable injury of the Government and the Filipino
people.[5] (Emphasis supplied)

Thus, petitioners are alleging that by accepting the

position of Chairman of the PNRC Board of Governors,

to show that he is entitled to the office in dispute,

otherwise the action may be dismissed at any stage.
[6]
In the present case, petitioners do not claim to be
entitled to the Senate office of respondent. Clearly,
petitioners have no standing to file the present
petition.

Even if the Court disregards the infirmities of the

petition and treats it as a taxpayers suit, the petition
would still fail on the merits.

respondent has automatically forfeited his seat in the

Senate. In short,

petitioners filed an action for

usurpation of public office against respondent, a public

officer

who

allegedly

committed

an

act

which

PNRC is a Private Organization Performing

Public Functions

constitutes a ground for the forfeiture of his public

office. Clearly, such an action is for quo warranto,
specifically under Section 1(b), Rule 66 of the Rules of
Court.

Quo warranto is generally commenced by the

Government as the proper party plaintiff. However,
under Section 5, Rule 66 of the Rules of Court, an
individual may commence such an action if he claims
to be entitled to the public office allegedly usurped by
another, in which case he can bring the action in his
own name. The person instituting quo warranto
proceedings in his own behalf must claim and be able

On 22 March 1947, President Manuel A. Roxas

signed Republic Act No. 95,[7] otherwise known as the
PNRC Charter. The PNRC is a non-profit, donor-funded,
voluntary, humanitarian organization, whose mission is
to bring timely, effective, and compassionate
humanitarian assistance for the most vulnerable
without consideration of nationality, race, religion,
gender, social status, or political affiliation. [8] The PNRC
provides six major services: Blood Services, Disaster
Management, Safety Services, Community Health and
Nursing, Social Services and Voluntary Service. [9]

The Republic of the Philippines, adhering to the

Geneva Conventions, established the PNRC as a
voluntary organization for the purpose contemplated
in the Geneva Convention of 27 July 1929. [10] The
Whereas clauses of the PNRC Charter read:

WHEREAS, there was developed at

Geneva, Switzerland, on August 22, 1864,
a convention by which the nations of the
world were invited to join together in
diminishing, so far lies within their power,
the evils inherent in war;
WHEREAS, more than sixty nations of the
world have ratified or adhered to the
subsequent revision of said convention,
namely the Convention of Geneva of July
29 [sic], 1929 for the Amelioration of the
Condition of the Wounded and Sick of
Armies in the Field (referred to in this
Charter as the Geneva Red Cross
Convention);
WHEREAS, the Geneva Red Cross Convention
envisages the establishment in each country
of a voluntary organization to assist in caring
for the wounded and sick of the armed forces
and to furnish supplies for that purpose;

WHEREAS, the Republic of the

Philippines became an independent
nation
on
July
4,
1946
and
proclaimed its adherence to the
Geneva Red Cross Convention on
February 14, 1947, and by that
action
indicated
its
desire
to
participate with the nations of the
world in mitigating the suffering
caused by war and to establish in the
Philippines a voluntary organization
for that purpose as contemplated by
the Geneva Red Cross Convention;
WHEREAS, there existed in the Philippines
since 1917 a Charter of the American
National Red Cross which must be
terminated in view of the independence of
the Philippines; and
WHEREAS, the volunteer organizations
established in the other countries which
have ratified or adhered to the Geneva
Red Cross Convention assist in promoting
the health and welfare of their people in
peace and in war, and through their
mutual
assistance
and
cooperation
directly and through their international
organizations
promote
better
understanding and sympathy among the
peoples of the world. (Emphasis supplied)

The PNRC is a member National Society of the

International Red Cross and Red Crescent Movement
(Movement), which is composed of the International
Committee of the Red Cross (ICRC), the International
Federation of Red Cross and Red Crescent Societies
(International Federation), and the National Red Cross
and Red Crescent Societies (National Societies). The
Movement

is

united

and

guided

by

its

seven

Fundamental Principles:

1. HUMANITY The International Red Cross

and Red Crescent Movement, born of a
desire to bring assistance without
discrimination to the wounded on the
battlefield,
endeavors,
in
its
international and national capacity, to
prevent and alleviate human suffering
wherever it may be found. Its purpose
is to protect life and health and to
ensure respect for the human being. It
promotes
mutual
understanding,
friendship, cooperation and lasting
peace amongst all peoples.
2. IMPARTIALITY It makes no discrimination as to
nationality, race, religious beliefs, class or political

opinions. It endeavors to relieve the suffering of

individuals, being guided solely by their needs, and to
give priority to the most urgent cases of distress.
3. NEUTRALITY In order to continue to
enjoy the confidence of all, the
Movement may not take sides in
hostilities or engage at any time
in controversies of a political,
racial, religious or ideological
nature.
4. INDEPENDENCE The Movement is
independent.
The
National
Societies, while auxiliaries in the
humanitarian services of their
governments and subject to the
laws of their respective countries,
must
always
maintain
their
autonomy so that they may be
able at all times to act in
accordance with the principles of
the Movement.
5. VOLUNTARY SERVICE It is a voluntary
relief movement not prompted in any
manner by desire for gain.
6. UNITY There can be only one Red Cross or one Red
Crescent Society in any one country. It must be open
to all. It must carry on its humanitarian work
throughout its territory.

7. UNIVERSALITY The International Red Cross and Red

Crescent Movement, in which all Societies have equal
status and share equal responsibilities and duties in
helping each other, is worldwide. (Emphasis supplied)

personnel or as instruments of government policy.

Otherwise, the insurgents or separatists will treat PNRC
volunteers as enemies when the volunteers tend to the
wounded in the battlefield or the displaced civilians in
conflict areas.

The

Fundamental

standard

of

Principles

reference

for

provide
all

members

universal
of

the

Movement. The PNRC, as a member National Society of

the

Movement,

has

the

duty

to

uphold

the

Fundamental Principles and ideals of the Movement. In

order to be recognized as a National Society, the PNRC
has

to

be autonomous and

must

operate

in

conformity with the Fundamental Principles of the

Movement.

[11]

Thus, the PNRC must not only be, but must also be
seen to be, autonomous, neutral and independent in
order to conduct its activities in accordance with the
Fundamental Principles. The PNRC must not appear to
be

an

instrument

or

agency

that

implements

government policy; otherwise, it cannot merit the trust

of all and cannot effectively carry out its mission as a
National Red Cross Society.[12] It is imperative that the
PNRC must be autonomous, neutral, and independent

The reason for this autonomy is fundamental. To be

in relation to the State.

accepted by warring belligerents as neutral workers

during international or internal armed conflicts, the
PNRC volunteers must not be seen as belonging to any

To ensure and maintain its autonomy, neutrality, and

side of the armed conflict. In the Philippines where

independence,

there is a communist insurgency and a Muslim

controlled by the government. Indeed, the Philippine

separatist rebellion, the PNRC cannot be seen as

government does not own the PNRC. The PNRC does

government-owned or controlled, and neither can the

not have government assets and does not receive any

PNRC

appropriation from the Philippine Congress. [13] The

volunteers

be

identified

as

government

the

PNRC

cannot

be

owned

or

PNRC is financed primarily by contributions from

(4/5), of the PNRC Board of Governors are not

private

appointed by the President. Section 6 of the PNRC

individuals

and

private

entities

obtained

through solicitation campaigns organized by its Board

Charter, as amended, provides:

of Governors, as provided under Section 11 of the

PNRC Charter:
SECTION 6. The governing powers and
authority shall be vested in a Board of
Governors composed of thirty members,
six of whom shall be appointed by the
President of the Philippines, eighteen shall
be elected by chapter delegates in
biennial conventions and the remaining
six shall be selected by the twenty-four
members of the Board already chosen. x x
x.

SECTION 11. As a national voluntary

organization, the Philippine National
Red Cross shall be financed primarily
by contributions obtained through
solicitation campaigns throughout
the year which shall be organized by
the
Board
of
Governors
and
conducted by the Chapters in their
respective jurisdictions. These fund
raising campaigns shall be conducted
independently of other fund drives by
other organizations. (Emphasis supplied)

Thus, of the twenty-four members of the PNRC Board,

eighteen are elected by the chapter delegates of the
PNRC, and six are elected by the twenty-four members
already chosen a select group where the private sector
members have three-fourths majority. Clearly, an

The government does not control the PNRC. Under the

overwhelming majority of four-fifths of the PNRC

PNRC Charter, as amended, only six of the thirty

Board are elected or chosen by the private

members of the PNRC Board of Governors are

sector members of the PNRC.

appointed

by

the

President

of

the

Philippines. Thus, twenty-four members, or four-fifths

The PNRC Board of Governors, which exercises all

corporate powers of the PNRC, elects the PNRC
Chairman and all other officers of the PNRC. The
incumbent Chairman of PNRC, respondent Senator
Gordon, was elected, as all PNRC Chairmen are
elected,

by

a private

sector-controlled

PNRC

Board four-fifths of whom are private sector members

of the PNRC.The PNRC Chairman is not appointed by
the President or by any subordinate government
official.

Under Section 16, Article VII of the Constitution, [14] the

President appoints all officials and employees in the
Executive branch whose appointments are vested in
the President by the Constitution or by law. The
President also appoints those whose appointments are
not otherwise provided by law. Under this Section 16,
the law may also authorize the heads of departments,
agencies, commissions, or boards to appoint officers
lower in rank than such heads of departments,
agencies, commissions or boards.[15] In Rufino v.
Endriga,[16] the Court explained appointments under
Section 16 in this wise:

Under Section 16, Article VII of the 1987

Constitution, the President appoints three
groups of officers. The first group refers to
the heads of the Executive departments,
ambassadors, other public ministers and
consuls, officers of the armed forces from
the rank of colonel or naval captain, and
other officers whose appointments are
vested
in
the
President
by
the
Constitution. The second group refers to
those whom the President may be
authorized by law to appoint. The third
group refers to all other officers of the
Government whose appointments are not
otherwise provided by law.

Under the same Section 16, there is a fourth group of

lower-ranked officers whose appointments Congress
may by law vest in the heads of departments,
agencies, commissions, or boards. x x x

xxx

In a department in the Executive

the Secretary. The law may
Undersecretary, acting as such
appoint lower-ranked officers

branch, the head is

not authorize the
Undersecretary, to
in the Executive

department. In an agency, the power is vested in the

head of the agency for it would be preposterous to
vest it in the agency itself. In a commission, the head
is the chairperson of the commission. In a board, the
head is also the chairperson of the board. In the last
three situations, the law may not also authorize
officers other than the heads of the agency,
commission, or board to appoint lower-ranked officers.

of the Constitution. Certainly, the PNRC Chairman is

not an official or employee of the Judiciary or
Legislature. This leads us to the obvious conclusion
that the PNRC Chairman is not an official or employee
of

the

Philippine

government

Government. Not

official

or

employee,

being
the

PNRC

Chairman, as such, does not hold a government

office or employment.

xxx

The Constitution authorizes Congress to vest the

power to appoint lower-ranked officers specifically in
the heads of the specified offices, and in no other
person. The word heads refers to the chairpersons of
the commissions or boards and not to their members,
for several reasons.

The President does not appoint the Chairman of the

PNRC. Neither does the head of any department,
agency, commission or board appoint the PNRC
Chairman. Thus, the PNRC Chairman is not an official
or employee of the Executive branch since his
appointment does not fall under Section 16, Article VII

Under Section 17, Article VII of the Constitution, [17] the

President exercises control over all government offices
in the Executive branch. If an office is legally not
under the control of the President, then such
office
is
not
part
of
the
Executive
[18]
branch. In Rufino v. Endriga,
the Court explained
the Presidents power of control over all government
offices as follows:

Every government office, entity, or

agency must fall under the Executive,
Legislative, or Judicial branches, or must
belong to one of the independent
constitutional bodies, or must be a quasijudicial body or local government unit.
Otherwise, such government office,
entity, or agency has no legal and
constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial

branches of government. The CCP is also not one of
the independent constitutional bodies. Neither is the
CCP a quasi-judicial body nor a local government unit.
Thus, the CCP must fall under the Executive branch.
Under the Revised Administrative Code of 1987, any
agency not placed by law or order creating them under
any specific department falls under the Office of the
President.

Since the President exercises control over all the

executive departments, bureaus, and offices, the
President necessarily exercises control over the CCP
which is an office in the Executive branch. In
mandating that the President shall have control of all
executive . . . offices, Section 17, Article VII of the 1987
Constitution does not exempt any executive office one
performing executive functions outside of the
independent constitutional bodies from the Presidents
power of control. There is no dispute that the CCP
performs executive, and not legislative, judicial, or
quasi-judicial functions.

departments, agencies, commissions, or boards.

The power of control means the power to revise
or reverse the acts or decisions of a subordinate
officer involving the exercise of discretion.

In short, the President sits at the apex of the Executive

branch, and exercises control of all the executive
departments, bureaus, and offices. There can be no
instance under the Constitution where an officer of the
Executive branch is outside the control of the
President. The Executive branch is unitary since there
is only one President vested with executive power
exercising
control
over
the
entire
Executive
branch. Any office in the Executive branch that is not
under the control of the President is a lost command
whose existence is without any legal or constitutional
basis. (Emphasis supplied)

An overwhelming four-fifths majority of the PNRC

Board are private sector individuals elected to the
PNRC Board by the private sector members of the

The Presidents power of control applies to the

acts or decisions of all officers in the Executive
branch. This is true whether such officers are
appointed by the President or by heads of

PNRC. The PNRC Board exercises all corporate powers

of the PNRC. The PNRC is controlled by private sector
individuals. Decisions or actions of the PNRC Board are
not

reviewable

by the

President. The

President

cannot

reverse

or

modify

the

decisions

or

can

be

PNRC

member

for

one

year

upon

actions of the PNRC Board. Neither can the

contributing P35, P100, P300, P500 or P1,000 for the

President reverse or modify the decisions or

year.[20] Even foreigners, whether residents or not, can

actions of the PNRC Chairman. It is the PNRC Board

be members of the PNRC. Section 5 of the PNRC

that can review, reverse or modify the decisions or

Charter, as amended by Presidential Decree No. 1264,

actions of the PNRC Chairman. This proves again that

[21]

reads:

the office of the PNRC Chairman is a private office, not

a government office.
SEC. 5. Membership in the Philippine
National Red Cross shall be open to the
entire population in the Philippines
regardless of citizenship. Any contribution
to the Philippine National Red Cross
Annual Fund Campaign shall entitle the
contributor to membership for one year
and said contribution shall be deductible
in full for taxation purposes.

Although the State is often represented in the

governing bodies of a National Society, this can be
justified by the need for proper coordination with the
public authorities, and the government representatives
may take part in decision-making within a National
Society. However, the freely-elected representatives of
a National Societys active members must remain in a
large majority in a National Societys governing bodies.
[19]

The PNRC is not government-owned but privately

owned. The vast majority of the thousands of
PNRC members are private individuals, including
students.

Under

the

PNRC

Charter,

those

Thus, the PNRC is a privately owned, privately funded,

and privately run charitable organization. The PNRC is
not a government-owned or controlled corporation.

who

contribute to the annual fund campaign of the PNRC

are entitled to membership in the PNRC for one
year. Thus, any one between 6 and 65 years of age

Petitioners anchor their petition on the 1999 case

of Camporedondo v. NLRC,[22] which ruled that the
PNRC

is

government-owned

or

controlled

corporation. In ruling that the PNRC is a governmentowned or controlled corporation, the simple test used
was whether the corporation was created by its own
special charter for the exercise of a public function or
by

incorporation

under

the

general

corporation

law. Since the PNRC was created under a special

charter, the Court then ruled that it is a government
corporation. However, the Camporedondoruling failed
to consider the definition of a government-owned or
controlled corporation as provided under Section 2(13)
of the Introductory Provisions of the Administrative

where applicable as in the case of

stock corporations, to the extent of
at least fifty-one (51) percent of its
capital
stock: Provided,
That
government-owned
or
controlled
corporations may be further categorized
by the Department of the Budget, the
Civil Service Commission, and the
Commission on Audit for purposes of the
exercise and discharge of their respective
powers, functions and responsibilities with
respect to such corporations.(Boldfacing
and underscoring supplied)

Code of 1987:

A government-owned or controlled corporation must

be owned by the government, and in the case of a
SEC. 2. General Terms Defined. x x x
(13) Government-owned
or
controlled corporation refers to any
agency organized as a stock or nonstock
corporation,
vested
with
functions relating to public needs
whether governmental or proprietary
in
nature, and
owned
by
the
Government directly or through its
instrumentalities either wholly, or

stock corporation, at least a majority of its capital

stock must be owned by the government. In the case
of a non-stock corporation, by analogy at least a
majority of the members must be government officials
holding

such

membership

by

appointment

or

designation by the government. Under this criterion,

and as discussed earlier, the government does not
own or control PNRC.

The PNRC Charter is Violative of the

Constitutional Proscription against the Creation
of Private Corporations by Special Law

The 1935 Constitution, as amended, was in force when

the PNRC was created by special charter on 22 March
1947. Section 7, Article XIV of the 1935 Constitution,
as amended, reads:

SEC. 7. The Congress shall not,

except by general law, provide for the
formation, organization, or regulation of
private
corporations,
unless
such
corporations are owned or controlled by
the Government or any subdivision or
instrumentality thereof.

The subsequent 1973 and 1987 Constitutions contain

similar provisions prohibiting Congress from creating
private corporations except by general law. Section
1 of the PNRC Charter, as amended, creates the
PNRC as a body corporate and politic, thus:

SECTION 1. There is hereby created in

the Republic of the Philippines a
body corporate and politic to be the
voluntary
organization
officially
designated to assist the Republic of
the Philippines in discharging the
obligations set forth in the Geneva
Conventions and to perform such
other duties as are inherent upon a
National
Red
Cross
Society. The
national headquarters of this Corporation
shall be located in Metropolitan Manila.
(Emphasis supplied)

In Feliciano v. Commission on Audit,[23] the Court

explained the constitutional provision prohibiting
Congress from creating private corporations in this
wise:

We begin by explaining the general

framework under the fundamental law.
The Constitution recognizes two classes
of corporations. The first refers to private
corporations created under a general law.
The second refers to government-owned
or controlled corporations created by

special charters. Section 16, Article XII of

the Constitution provides:

Sec.
16.
The
Congress
shall not, except by general
law,
provide
for
the formation, organization,
or regulation of private
corporations.
Governmentowned
or
controlled
corporations may be created
or established by special
charters in the interest of the
common good and subject to
the test of economic viability.

The Constitution emphatically prohibits

the creation of private corporations
except by general law applicable to all
citizens. The purpose of this constitutional
provision is to ban private corporations
created by special charters, which
historically gave certain individuals,
families or groups special privileges
denied to other citizens.

In short, Congress cannot enact a law

creating a private corporation with a
special charter. Such legislation
would be unconstitutional. Private
corporations may exist only under a
general law. If the corporation is
private, it must necessarily exist
under a general law. Stated differently,
only corporations created under a general
law can qualify as private corporations.
Under existing laws, the general law is
the Corporation Code, except that the
Cooperative
Code
governs
the
incorporation of cooperatives.

The Constitution authorizes Congress to

create government-owned or controlled
corporations through special charters.
Since private corporations cannot have
special charters, it follows that Congress
can create corporations with special
charters only if such corporations are
government-owned
or
controlled.
[24]
(Emphasis supplied)

In Feliciano, the Court held that the Local Water

Districts
are
government-owned
or
controlled
corporations since they exist by virtue of Presidential
Decree No. 198, which constitutes their special charter.
The seed capital assets of the Local Water Districts,
such as waterworks and sewerage facilities, were
public property which were managed, operated by or
under the control of the city, municipality or province
before the assets were transferred to the Local Water
Districts. The Local Water Districts also receive
subsidies and loans from the Local Water Utilities
Administration (LWUA). In fact, under the 2009 General
Appropriations Act,[25] the LWUA has a budget
amounting
to P400,000,000
for
its
subsidy
[26]
requirements.
There is no private capital
invested in the Local Water Districts. The capital
assets and operating funds of the Local Water Districts
all come from the government, either through transfer
of assets, loans, subsidies or the income from such
assets or funds.

The government also controls the Local Water Districts

because the municipal or city mayor, or the provincial
governor, appoints all the board directors of the Local
Water Districts.Furthermore, the board directors and
other personnel of the Local Water Districts are
government employees subject to civil service laws
and anti-graft laws. Clearly, the Local Water Districts
are considered government-owned or controlled
corporations not only because of their creation by

special charter but also because the government in

fact owns and controls the Local Water Districts.
Just like the Local Water Districts, the PNRC was
created through a special charter. However, unlike
the Local Water Districts, the elements of
government ownership and control are clearly
lacking in the PNRC. Thus, although the PNRC is
created by a special charter, it cannot be considered
a government-owned or controlled corporation in the
absence of the essential elements of ownership and
control by the government. In creating the PNRC as a
corporate entity, Congress was in fact creating a
private corporation. However, the constitutional
prohibition against the creation of private corporations
by special charters provides no exception even for
non-profit or charitable corporations. Consequently,
the PNRC Charter, insofar as it creates the PNRC as a
private corporation and grants it corporate powers,
[27]
is void for being unconstitutional. Thus, Sections 1,
[28]
2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36]10,[37] 11,
[38]
12,[39] and
13[40] of
the
PNRC
Charter,
as
amended, are void.

private corporation, the PNRC should incorporate

The other provisions[41] of the PNRC Charter remain
valid as they can be considered as a recognition by the
State that the unincorporated PNRC is the local

under the Corporation Code and register with the

Securities and Exchange Commission if it wants to be a
private corporation.

National Society of the International Red Cross and

Red Crescent Movement, and thus entitled to the
benefits, exemptions and privileges set forth in the

WHEREFORE, we declare that the office of the

PNRC Charter. The other provisions of the PNRC

Chairman of the Philippine National Red Cross is not a

Charter implement the Philippine Governments treaty

government office or an office in a government-owned

obligations under Article 4(5) of the Statutes of the

or

International Red Cross and Red Crescent Movement,

prohibition in Section 13, Article VI of the 1987

which provides that to be recognized as a National

Constitution. We also declare that Sections 1, 2, 3,

Society, the Society must be duly recognized by the

4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of

legal government of its country on the basis of the

the Philippine National Red Cross, or Republic Act No.

Geneva Conventions and of the national legislation as

95, as amended by Presidential Decree Nos. 1264 and

1643, are VOID because they create the PNRC as a

voluntary

aid

society,

auxiliary

to

the

public

controlled

SO ORDERED.
In sum, we hold that the office of the PNRC Chairman
not

government

government-owned

or

office

or

controlled

for

purposes

of

private corporation or grant it corporate powers.

authorities in the humanitarian field.

is

corporation

an

office

corporation

in

a
for

purposes of the prohibition in Section 13, Article VI of

the 1987 Constitution. However, since the PNRC
Charter is void insofar as it creates the PNRC as a

the

DANTE V. LIBAN, REYNALDO M.

BERNARDO and SALVADOR M.
VIARI,
Petitioners,

- versus -

RICHARD J. GORDON,
Respondent.
PHILIPPINE
CROSS,
Intervenor.

NATIONAL

RED

G. R. No. 175352
Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTR
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
Promulgated:

January 18, 2011

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

as the

office

of

the

PNRC

Chairman

is

not

government office or an office in a government-owned

or

RESOLUTION

controlled

corporation

for

purposes

of

the

prohibition in Section 13, Article VI of the 1987

Constitution.[5] The Decision, however, further declared
void the PNRC Charter insofar as it creates the PNRC as
a private corporation and consequently ruled that the

LEONARDO-DE CASTRO, J.:

PNRC should incorporate under the Corporation Code

and

register

with

the

Securities

and

Exchange

Commission if it wants to be a private corporation.

[6]

This resolves the Motion for Clarification and/or for

Reconsideration[1] filed
respondent Richard

J.

on

August

10,

2009

by

Gordon (respondent)

of

the Decision promulgated by this Court on July 15,

2009

(the

Decision),

Reconsideration[2] filed

the Motion

for

on August

Partial
27,

2009 by movant-intervenor Philippine National Red

Cross (PNRC), and the latters Manifestation and
Motion to Admit Attached Position Paper[3] filed
on December 23, 2009.

In the Decision,[4] the Court held that respondent

did not forfeit his seat in the Senate when he accepted
the chairmanship of the PNRC Board of Governors,

The dispositive portion of the Decision reads as

follows:

WHEREFORE, we declare that the

office of the Chairman of the Philippine
National Red Cross is not a government
office or an office in a government-owned
or controlled corporation for purposes of
the prohibition in Section 13, Article VI of
the 1987 Constitution. We also declare
that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9,
10, 11, 12, and 13 of the Charter of the
Philippine National Red Cross, or Republic
Act No. 95, as amended by Presidential
Decree Nos. 1264 and 1643, are VOID
because they create the PNRC as a

private corporation or grant it corporate

powers.[7]
In

his Motion

for

Clarification

and/or

for

Reconsideration, respondent raises the following

grounds: (1) as the issue of constitutionality of

In its Motion for Partial Reconsideration,

PNRC prays that the Court sustain the constitutionality
of its Charter on the following grounds:

Republic Act (R.A.) No. 95 was not raised by the

parties, the Court went beyond the case in deciding

A.

THE
ASSAILED
DECISION
DECLARING
UNCONSTITUTIONAL
REPUBLIC ACT NO. 95 AS AMENDED
DEPRIVED INTERVENOR PNRC OF
ITS CONSTITUTIONAL RIGHT TO
DUE PROCESS.

such issue; and (2) as the Court decided that

Petitioners did not have standing to file the instant
Petition, the pronouncement of the Court on the
validity of R.A. No. 95 should be considered obiter.[8]

Respondent argues that the validity of R.A. No.

1.

INTERVENOR PNRC WAS NEVER A

PARTY
TO
THE
INSTANT
CONTROVERSY.

2.

THE
CONSTITUTIONALITY
OF
REPUBLIC
ACT
NO.
95,
AS
AMENDED WAS NEVER AN ISSUE IN
THIS CASE.

95 was a non-issue; therefore, it was unnecessary for

the Court to decide on that question. Respondent
cites Laurel v. Garcia,[9]wherein the Court said that it
will not pass upon a constitutional question although
properly presented by the record if the case can be
disposed of on some other ground and goes on to
claim that since this Court, in the Decision, disposed of
the

petition

on

some

other

ground, i.e., lack

of

standing of petitioners, there was no need for it to

delve into the validity of R.A. No. 95, and the rest of
the judgment should be deemed obiter.

B.

THE CURRENT CHARTER OF PNRC IS

PRESIDENTIAL DECREE NO. 1264 AND
NOT
REPUBLIC
ACT
NO.
95.

PRESIDENTIAL DECREE NO. 1264 WAS

NOT A CREATION OF CONGRESS.

In his Comment and Manifestation[10] filed on

November 9, 2009, respondent manifests: (1) that he
agrees with the position taken by the PNRC in its

C.

PNRCS STRUCTURE IS SUI GENERIS;

IT IS A CLASS OF ITS OWN. WHILE IT IS
PERFORMING
HUMANITARIAN
FUNCTIONS AS AN AUXILIARY TO
GOVERNMENT, IT IS A NEUTRAL
ENTITY SEPARATE AND INDEPENDENT
OF GOVERNMENT CONTROL, YET IT
DOES NOT QUALIFY AS STRICTLY
PRIVATE IN CHARACTER.

Motion for Partial Reconsideration dated August 27,

2009; and (2) as of the writing of said Comment and
Manifestation, there was pending before the Congress
of the Philippines a proposed bill entitled An Act
Recognizing
Autonomous,

the

PNRC

as

an

Non-Governmental

Independent,
Organization

Auxiliary to the Authorities of the Republic of the

Philippines in the Humanitarian Field, to be Known as
The Philippine Red Cross.[11]

After a thorough study of the arguments and points

raised by the respondent as well as those of movantintervenor in their respective motions,

we have

reconsidered our pronouncements in our Decision

dated July 15, 2009 with regard to the nature of the
PNRC and the constitutionality of some provisions of
the PNRC Charter, R.A. No. 95, as amended.

As correctly pointed out in respondents Motion, the

issue of constitutionality of R.A. No. 95 was not raised

by the parties, and was not among the issues defined

of R.A. No. 95, as amended by Presidential Decree

in the body of the Decision; thus, it was not the

(P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead,

very lis mota of the case. We have reiterated the rule

the Court should have exercised judicial restraint on

as to when the Court will consider the issue of

this matter, especially since there was some other

constitutionality in Alvarez v. PICOP Resources, Inc.,

ground upon which the Court could have based its

[12]

judgment.Furthermore, the PNRC, the entity most

thus:

adversely

affected

by

this

declaration

of

unconstitutionality, which was not even originally a

This Court will not touch the issue of
unconstitutionality unless it is the
very lis mota. It is a well-established
rule that a court should not pass
upon a constitutional question and
decide a law to be unconstitutional
or invalid, unless such question is
raised by the parties and that when it
is raised, if the record also presents some
other ground upon which the court may
[rest] its judgment, that course will be
adopted and the constitutional question
will be left for consideration until such
question will be unavoidable.[13]

party to this case, was being compelled, as a

consequence of the Decision, to suddenly reorganize
and incorporate under the Corporation Code, after
more than sixty (60) years of existence in this
country.

Its existence as a chartered corporation remained

unchallenged

on

ground

of

unconstitutionality

notwithstanding that R.A. No. 95 was enacted on

March 22, 1947 during the effectivity of the 1935
Constitution, which provided for a proscription against
the creation of private corporations by special law, to
wit:

Under

the

rule

quoted

above,

therefore,

this

Court should not have declared void certain sections

SEC. 7. The Congress shall not,

except by general law, provide for the
formation, organization, or regulation of
private
corporations,
unless
such
corporations are owned and controlled by
the Government or any subdivision or
instrumentality thereof. (Art. XIV, 1935
Constitution.)

Since its enactment, the PNRC Charter was amended

several times, particularly on June 11, 1953, August
16, 1971, December 15, 1977, and October 1, 1979,
by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264,
and P.D. No. 1643, respectively. The passage of several
laws

relating

to

the

PNRCs

corporate

existence

notwithstanding the effectivity of the constitutional

proscription on the creation of private corporations by
law, is a recognition that the PNRC is not strictly in the

Similar provisions are found in Article XIV, Section 4 of

nature of a private corporation contemplated by the

the 1973 Constitution and Article XII, Section 16 of the

aforesaid constitutional ban.

1987 Constitution. The latter reads:

A closer look at the nature of the PNRC would

SECTION 16. The Congress shall
not, except by general law, provide for
the formation, organization, or regulation
of private corporations. Governmentowned or controlled corporations may be
created or established by special charters
in the interest of the common good and
subject to the test of economic viability.

show that there is none like it not just in terms of

structure, but also in terms of history, public service
and official status accorded to it by the State and the
international community. There is merit in PNRCs
contention that its structure is sui generis.

The

PNRC

succeeded

the

chapter

of

the

American Red Cross which was in existence in the

Philippines since 1917. It was created by an Act of

Congress after the Republic of the Philippines became

an independent nation on July 6, 1946 and proclaimed
on February 14, 1947 its adherence to the Convention
of Geneva of July 29, 1929 for the Amelioration of the

WHEREAS, during the meeting in

Geneva, Switzerland, on 22 August 1894,
the nations of the world unanimously
agreed to diminish within their power the
evils inherent in war;

Condition of the Wounded and Sick of Armies in the

Field (the Geneva Red Cross Convention). By that
action the Philippines indicated its desire to participate
with the nations of the world in mitigating the suffering
caused by war and to establish in the Philippines a
voluntary organization for that purpose and like other
volunteer organizations established in other countries
which have ratified the Geneva Conventions, to
promote the health and welfare of the people in peace
and in war.[14]

The provisions of R.A. No. 95, as amended

by R.A. Nos. 855 and 6373, and further amended by
P.D.

Nos.

1264

and

1643,

show

the

historical

background and legal basis of the creation of the PNRC

by

legislative

fiat,

as

voluntary

organization

impressed with public interest. Pertinently R.A. No. 95,

as amended by P.D. 1264, provides:

WHEREAS, more than one hundred

forty nations of the world have ratified or
adhered to the Geneva Conventions of
August 12, 1949 for the Amelioration of
the Condition of the Wounded and Sick of
Armed Forces in the Field and at Sea, The
Prisoners of War, and The Civilian
Population in Time of War referred to in
this Charter as the Geneva Conventions;

WHEREAS, the Republic of the

Philippines became an independent
nation
on
July
4,
1946,
and
proclaimed on February 14, 1947 its
adherence
to
the
Geneva
Conventions of 1929, and by the
action,
indicated
its
desire
to
participate with the nations of the
world in mitigating the suffering
caused by war and to establish in the
Philippines a voluntary organization

for that purpose as contemplated by

the Geneva Conventions;

WHEREAS, there existed in the

Philippines since 1917 a chapter of the
American National Red Cross which was
terminated in view of the independence
of the Philippines; and

WHEREAS,
the
volunteer
organizations
established
in
other
countries which have ratified or adhered
to the Geneva Conventions assist in
promoting the health and welfare of
their people in peace and in war, and
through their mutual assistance and
cooperation directly and through their
international
organizations
promote
better understanding and sympathy
among the people of the world;

NOW, THEREFORE, I, FERDINAND E.

MARCOS, President of the Philippines, by
virtue of the powers vested in me by the
Constitution as Commander-in-Chief of all
the Armed Forces of the Philippines and

pursuant to Proclamation No. 1081 dated

September 21, 1972, and General Order
No. 1 dated September 22, 1972, do
hereby decree and order that Republic Act
No. 95, Charter of the Philippine National
Red Cross (PNRC) as amended by
Republic Acts No. 855 and 6373, be
further amended as follows:

Section 1. There is hereby

created in the Republic of the
Philippines a body corporate and
politic
to
be
the
voluntary
organization officially designated to
assist the Republic of the Philippines
in discharging the obligations set
forth in the Geneva Conventions and
to perform such other duties as are
inherent upon a national Red Cross
Society. The national headquarters of
this Corporation shall be located in
Metropolitan
Manila. (Emphasis
supplied.)

The significant public service rendered by the

PNRC can be gleaned from Section 3 of its Charter,
which provides:

Section 3. That the purposes of

this Corporation shall be as follows:

(a) To provide volunteer aid to the

sick and wounded of armed forces in time
of war, in accordance with the spirit of
and under the conditions prescribed by
the Geneva Conventions to which the
Republic of the Philippines proclaimed its
adherence;

(b) For the purposes mentioned in

the preceding sub-section, to perform all
duties devolving upon the Corporation as
a result of the adherence of the Republic
of the Philippines to the said Convention;

relief

(c) To act in matters of voluntary

and in accordance with the

authorities of the armed forces as a

medium of communication between
people of the Republic of the Philippines
and their Armed Forces, in time of peace
and in time of war, and to act in such
matters
between
similar
national
societies of other governments and the
Governments and people and the Armed
Forces of the Republic of the Philippines;

(d) To establish and maintain a

system of national and international relief
in time of peace and in time of war and
apply the same in meeting and
emergency needs caused by typhoons,
flood, fires, earthquakes, and other
natural disasters and to devise and carry
on measures for minimizing the suffering
caused by such disasters;

(e) To devise and promote such

other services in time of peace and in
time of war as may be found desirable in
improving the health, safety and welfare
of the Filipino people;

(f) To devise such means as to

make every citizen and/or resident of the
Philippines a member of the Red Cross.
The PNRC works closely with the ICRC and has
been
The PNRC is one of the National Red Cross and
Red Crescent Societies, which, together with the

involved

in

humanitarian

activities

in

the

Philippines since 1982. Among others, these activities

in the country include:

International Committee of the Red Cross (ICRC) and

the IFRC and RCS, make up the International Red Cross
and Red Crescent Movement (the Movement). They
constitute

worldwide

humanitarian

movement,

1.

Giving

protection

and

assistance

to

civilians displaced or otherwise affected by

whose mission is:

armed clashes between the government and

armed
[T]o prevent and alleviate human
suffering wherever it may be found, to
protect life and health and ensure respect
for the human being, in particular in times
of armed conflict and other emergencies,
to work for the prevention of disease and
for the promotion of health and social
welfare, to encourage voluntary service
and a constant readiness to give help by
the members of the Movement, and a
universal sense of solidarity towards all
those in need of its protection and
assistance.[15]

opposition

groups,

primarily

in

Mindanao;
2.

Working to minimize the effects of armed

hostilities and violence on the population;

3.

Visiting detainees; and

4.

Promoting

awareness

of

international

humanitarian law in the public and private

sectors.[16]

National

Societies

such

as

the

PNRC

act

as auxiliaries to the public authorities of their own

countries in the humanitarian field and provide a range
of services including disaster relief and health and
social programmes.

The International Federation of Red Cross (IFRC)

and Red Crescent Societies (RCS) Position Paper,
[17]

submitted by the PNRC, is instructive with regard to

the elements of the specific nature of the National

National Societies, such as the

Philippine National Red Cross and its
sister Red Cross and Red Crescent
Societies,
have
certain
specificities
deriving
from
the
1949
Geneva
Convention and the Statutes of the
International Red Cross and Red Crescent
Movement (the Movement). They are also
guided by the seven Fundamental
Principles of the Red Cross and Red
Crescent
Movement: Humanity,
Impartiality,
Neutrality,
Independence, Voluntary Service,
Unity and Universality.

Societies such as the PNRC, to wit:

A National Society partakes of
a sui
generis character. It
is
a
protected component of the Red Cross
movement under Articles 24 and 26 of
the First Geneva Convention, especially in
times of armed conflict. These provisions
require that the staff of a National Society
shall be respected and protected in all
circumstances. Such protection is not
ordinarily afforded by an international
treaty to ordinary private entities or even
non-governmental
organisations
(NGOs). This sui generis character is also
emphasized by the Fourth Geneva
Convention
which
holds
that
an

Occupying Power cannot require any

change in the personnel or structure of
a National Society. National societies
are therefore organizations that are
directly regulated by international
humanitarian law, in contrast to
other
ordinary
private
entities,
including NGOs.

share equal responsibilities and duties in

helping each other. This is considered to
be the essence of the Fundamental
Principle of Universality.

Furthermore, the National Societies

are considered to be auxiliaries to the
public authorities in the humanitarian
field. x x x.

xxxx

In addition, National Societies are

not only officially recognized by their
public authorities as voluntary aid
societies,
auxiliary
to
the
public
authorities in the humanitarian field, but
also benefit from recognition at the
International level. This is considered to
be an element distinguishing National
Societies from other organisations (mainly
NGOs) and other forms of humanitarian
response.

x x x. No other organisation
belongs to a world-wide Movement in
which all Societies have equal status and

The auxiliary status of [a] Red

Cross Society means that it is at one
and the same time a private
institution and a public service
organization because the very nature
of its work implies cooperation with
the authorities, a link with the
State. In carrying out their major
functions, Red Cross Societies give their
humanitarian support to official bodies, in
general having larger resources than the
Societies, working towards comparable
ends in a given sector.

x x x No other organization has

duty to be its governments

humanitarian
partner
while
[18]
remaining independent.
(Emphases
ours.)

families, or groups, which were denied to other

groups. Based on the above discussion, it can be seen
that the PNRC Charter does not come within the spirit
of this constitutional provision, as it does not grant
special privileges to a particular individual, family, or
group, but creates an entity that strives to serve the

It is in recognition of this sui generis character of the

common good.

PNRC that R.A. No. 95 has remained valid and effective

from the time of its enactment in March 22, 1947
under the 1935 Constitution and during the effectivity

Furthermore, a strict and mechanical interpretation of

of the 1973 Constitution and the 1987 Constitution.

Article XII, Section 16 of the 1987 Constitution will

hinder the State in adopting measures that will serve
the public good or national interest. It should be noted
that

special

law, R.A. No.

9520,

the

Philippine

Cooperative Code of 2008, and not the general

The PNRC Charter and its amendatory laws have

corporation

code,

vests

corporate

power

and

not been questioned or challenged on constitutional

capacities

grounds, not even in this case before the Court now.

corporations, in order to implement the States avowed

upon

cooperatives

which

are

private

policy.

In

the

Decision,

the

Court,

citing Feliciano

v.

explained that the purpose of

In the Decision of July 15, 2009, the Court

the constitutional provision prohibiting Congress from

recognized the public service rendered by the PNRC as

creating private corporations was to prevent the

the governments partner in the observance of its

granting of special privileges to certain individuals,

international commitments, to wit:

Commission on Audit,

[19]

consonance
The PNRC is a non-profit, donor-funded,
voluntary, humanitarian organization,
whose mission is to bring timely,
effective,
and
compassionate
humanitarian assistance for the most
vulnerable without consideration of
nationality, race, religion, gender, social
status, or political affiliation. The PNRC
provides six major services: Blood
Services, Disaster Management, Safety
Services, Community Health and Nursing,
Social Services and Voluntary Service.

with

its

treaty

obligations.The

Geneva Convention has the force and effect of law.

[21]

Under the Constitution, the Philippines adopts the

generally accepted principles of international law as

part of the law of the land.[22] This constitutional
provision

must

be

reconciled

and

harmonized

with Article XII, Section 16 of the Constitution, instead

of using the latter to negate the former.

By requiring the PNRC to organize under the

Corporation

Code

just

like

any

other

private

corporation, the Decision of July 15, 2009 lost sight of

The Republic of the Philippines,
adhering to the Geneva Conventions,
established the PNRC as a voluntary
organization
for
the
purpose
contemplated in the Geneva Convention
of 27 July 1929. x x x.[20] (Citations
omitted.)

the

PNRCs

special

status

under

international

humanitarian law and as an auxiliary of the State,

designated to assist it in discharging its obligations
under the Geneva Conventions. Although the PNRC is
called to be independent under its Fundamental
Principles, it interprets such independence as inclusive
of its duty to be the governments humanitarian
partner. To

be

recognized

in

the

International

Committee, the PNRC must have an autonomous

So must this Court recognize too the
countrys adherence to the Geneva Convention
and respect the unique status of the PNRC in

status, and carry out its humanitarian mission in a

neutral and impartial manner.

Based on the above, the sui generis status of

the PNRC is now sufficiently established. Although it is
However, in accordance with the Fundamental

neither a subdivision, agency, or instrumentality of the

Principle of Voluntary Service of National Societies of

government, nor a government-owned or -controlled

the Movement, the PNRC must be distinguished from

corporation or a subsidiary thereof, as succinctly

private and profit-making entities. It is the main

explained in the Decision of July 15, 2009, so much so

characteristic of National Societies that they are not

that respondent, under the Decision, was correctly

inspired by the desire for financial gain but by

allowed to hold his position as Chairman thereof

individual commitment and devotion to a humanitarian

concurrently while he served as a Senator, such a

purpose freely chosen or accepted as part of the

conclusion does not ipso facto imply that the PNRC is

service that National Societies through its volunteers

a private corporation within the contemplation of the

and/or members render to the Community.

[23]

provision of the Constitution, that must be organized

under the Corporation Code. As correctly mentioned by
Justice Roberto A. Abad, the sui generischaracter of

The

PNRC,

as

National

Society

of

the

International Red Cross and Red Crescent Movement,

PNRC requires us to approach controversies involving

the PNRC on a case-to-case basis.

can neither be classified as an instrumentality of the

State, so as not to lose its character of neutrality as
well as its independence, nor strictly as a private

In sum, the PNRC enjoys a special status as an

corporation since it is regulated by international

important ally and auxiliary of the government in the

humanitarian law and is treated as an auxiliary of the

humanitarian field in accordance with its commitments

State.[24]

under international law.This Court cannot all of a

sudden refuse to recognize its existence, especially
since the issue of the constitutionality of the PNRC
Charter was never raised by the parties. It bears

emphasizing that the PNRC has responded to almost

public

all national disasters since 1947, and is widely known

constitutional in its entirety. The dispositive portion of

to provide a substantial portion of the countrys blood

the

requirements. Its

deleting the second sentence, to now read as follows:

humanitarian

work

is

in

nature. R.A. No.

Decision

should

95

remains

therefore

valid

and

be MODIFIED by

unparalleled. The Court should not shake its existence

to the core in an untimely and drastic manner that
would not only have negative consequences to those
who depend on it in times of disaster and armed
hostilities but also have adverse effects on the image
of the Philippines in the international community. The
sections of the PNRC Charter that were declared
void must therefore stay.

WHEREFORE,
respondent

premises

Richard

Clarification

J.

and/or

movant-intervenor

considered,

Gordons Motion

for

constitutionality

July

PNRCs Motion
15,

2009

of R.A. No.

for

SO ORDERED.

Reconsideration and
for

Partial

Reconsideration of the Decision in G.R.

175352 dated

WHEREFORE, we declare that the

office of the Chairman of the Philippine
National Red Cross is not a government
office or an office in a government-owned
or controlled corporation for purposes of
the prohibition in Section 13, Article VI of
the 1987 Constitution.

95,

No.

are GRANTED. The

as

amended,

the

charter of the Philippine National Red Cross, was not

raised by the parties as an issue and should not have
been passed upon by this Court. The structure of the
PNRC is sui generis being neither strictly private nor

ARTURO
M.
TOLENTINO
and
ARTURO
C.
MOJICA, petitioners, vs. COMMISSION ON
ELECTIONS, SENATOR RALPH G. RECTO and
SENATOR
GREGORIO
B.
HONASAN, respondents.

DECISION
CARPIO, J.:
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 01006 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. 01-005.
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.
Following Senator Guingonas confirmation, the
Senate on 8 February 2001 passed Resolution No. 84
(Resolution No. 84) certifying to the existence of a
vacancy in the Senate. Resolution No. 84 called on
COMELEC to fill the vacancy through a special election
to be held simultaneously with the regular elections on

14 May 2001. Twelve Senators, with a 6-year term

each, were due to be elected in that election.
[1]
Resolution No. 84 further provided that the
Senatorial candidate garnering the 13 th highest
number of votes shall serve only for the unexpired
term of former Senator Teofisto T. Guingona, Jr., which
ends on 30 June 2004.[2]
On 5 June 2001, after COMELEC had canvassed the
election results from all the provinces but one (Lanao
del Norte), COMELEC issued Resolution No. 01-005
provisionally proclaiming 13 candidates as the elected
Senators. Resolution No. 01-005 also provided that the
first twelve (12) Senators shall serve for a term of six
(6) years and the thirteenth (13 th) Senator shall serve
the unexpired term of three (3) years of Senator
Teofisto T. Guingona, Jr. who was appointed VicePresident.[3] Respondents Ralph Recto (Recto) and
Gregorio Honasan (Honasan) ranked 12 th and 13th,
respectively, in Resolution No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and
Arturo Mojica (petitioners), as voters and taxpayers,
filed the instant petition for prohibition, impleading
only COMELEC as respondent. Petitioners sought to
enjoin COMELEC from proclaiming with finality the
candidate for Senator receiving the 13 th highest
number of votes as the winner in the special election
for a single three-year term seat. Accordingly,
petitioners prayed for the nullification of Resolution No.
01-005 in so far as it makes a proclamation to such
effect.

Petitioners
contend
that
COMELEC
issued
Resolution No. 01-005 without jurisdiction because: (1)
it failed to notify the electorate of the position to be
filled in the special election as required under Section
2 of Republic Act No. 6645 (R.A. No. 6645); [4] (2) it
failed to require senatorial candidates to indicate in
their certificates of candidacy whether they seek
election under the special or regular elections as
allegedly required under Section 73 of Batas
Pambansa Blg. 881;[5] and, consequently, (3) it failed to
specify in the Voters Information Sheet the candidates
seeking election under the special or regular senatorial
elections as purportedly required under Section 4,
paragraph 4 of Republic Act No. 6646 (R.A. No. 6646).
[6]
Petitioners add that because of these omissions,
COMELEC canvassed all the votes cast for the
senatorial candidates in the 14 May 2001 elections
without distinction such that there were no two
separate Senate elections held simultaneously but just
a single election for thirteen seats, irrespective of
term.[7]
Stated otherwise, petitioners claim that if held
simultaneously, a special and a regular election must
be distinguished in the documentation as well as in the
canvassing of their results. To support their claim,
petitioners cite the special elections simultaneously
held with the regular elections of 13 November 1951
and 8 November 1955 to fill the seats vacated by
Senators Fernando Lopez and Carlos P. Garcia,
respectively, who became Vice-Presidents during their
tenures in the Senate.[8] Petitioners point out that in

those elections, COMELEC separately canvassed the

votes cast for the senatorial candidates running under
the regular elections from the votes cast for the
candidates
running
under
the
special
elections. COMELEC also separately proclaimed the
winners in each of those elections.[9]
Petitioners sought the issuance of a temporary
restraining order during the pendency of their petition.
Without issuing any restraining order, we required
COMELEC to Comment on the petition.
On 20 July 2001, after COMELEC had canvassed
the results from all the provinces, it issued Resolution
No. 01-006 declaring official and final the ranking of
the 13 Senators proclaimed in Resolution No. 01-005.
The 13 Senators took their oaths of office on 23 July
2001.
In view of the issuance of Resolution No. 01-006,
the Court required petitioners to file an amended
petition impleading Recto and Honasan as additional
respondents. Petitioners accordingly filed an amended
petition in which they reiterated the contentions raised
in their original petition and, in addition, sought the
nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto
all claim that a special election to fill the seat vacated
by Senator Guingona was validly held on 14 May
2001. COMELEC and Honasan further raise preliminary

issues on the mootness of the petition and on

petitioners standing to litigate. Honasan also claims
that the petition, which seeks the nullity of his
proclamation
as
Senator,
is
actually
a quo
warranto petition and the Court should dismiss the
same for lack of jurisdiction. For his part, Recto, as the
12th ranking Senator, contends he is not a proper party
to this case because the petition only involves the
validity of the proclamation of the 13 th placer in the 14
May 2001 senatorial elections.
The Issues
The following
resolution:

are

the

issues

presented

for

(1) Procedurally
(a) whether the petition is in fact a petition for quo
warranto over which the Senate Electoral Tribunal is
the sole judge;
(b) whether the petition is moot; and
(c) whether petitioners have standing to litigate.
(2) On the merits, whether a special election to fill
a vacant three-year term Senate seat was validly held
on 14 May 2001.
The Ruling of the Court

The petition has no merit.

On the Preliminary Matters
The Nature of the Petition and the Courts
Jurisdiction
A quo warranto proceeding is, among others, one
to determine the right of a public officer in the exercise
of his office and to oust him from its enjoyment if his
claim is not well-founded.[10] Under Section 17, Article
VI of the Constitution, the Senate Electoral Tribunal is
the sole judge of all contests relating to the
qualifications of the members of the Senate.
A perusal of the allegations contained in the
instant petition shows, however, that what petitioners
are questioning is the validity of the special election on
14
May
2001
in
which
Honasan
was
elected. Petitioners various prayers are, namely: (1) a
declaration that no special election was held
simultaneously with the general elections on 14 May
2001; (2) to enjoin COMELEC from declaring anyone as
having won in the special election; and (3) to annul
Resolution Nos. 01-005 and 01-006 in so far as these
Resolutions proclaim Honasan as the winner in the
special election. Petitioners anchor their prayers on
COMELECs alleged failure to comply with certain
requirements pertaining to the conduct of that special
election. Clearly then, the petition does not seek to
determine Honasans right in the exercise of his office
as Senator. Petitioners prayer for the annulment of

Honasans proclamation and, ultimately, election is

merely incidental to petitioners cause of action.
Consequently, the Court can properly exercise
jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June
2001 of the 13 Senators and its subsequent
confirmation on 20 July 2001 of the ranking of the 13
Senators render the instant petition to set aside
Resolutions Nos. 01-005 and 01-006 moot and
academic.
Admittedly, the office of the writ of prohibition is to
command a tribunal or board to desist from
committing an act threatened to be done without
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
[11]
Consequently, the writ will not lie to enjoin acts
already done.[12] 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.
[13]
Thus, in Alunan III v. Mirasol,[14] we took cognizance
of a petition to set aside an order canceling the
general elections for the Sangguniang Kabataan (SK)
on 4 December 1992 despite that at the time the
petition was filed, the SK election had already taken
place. We noted in Alunan that since the question of
the validity of the order sought to be annulled is likely
to arise in every SK elections and yet the question may
not be decided before the date of such elections, the

mootness of the petition is no bar to its resolution. This

observation squarely applies to the instant case. The
question of the validity of a special election to fill a
vacancy in the Senate in relation to COMELECs failure
to comply with requirements on the conduct of such
special election is likely to arise in every such
election. Such question, however, may not be decided
before the date of the election.
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 validity of the special
election on 14 May 2001, petitioners assert a harm
classified as a generalized grievance. This generalized
grievance is shared in substantially equal measure by
a large class of voters, if not all the voters, who voted
in that election.[19]Neither have petitioners alleged, in
their capacity as taxpayers, that the Court should give
due course to the petition because in the special
election held on 14 May 2001 tax money [was] x x x
extracted and spent in violation of specific
constitutional protections against abuses of legislative
power or that there [was] misapplication of such funds
by COMELEC or that public money [was] deflected to
any improper purpose.[20]
On the other hand, we have relaxed the
requirement on standing and exercised our discretion
to give due course to voters suits involving the right of
suffrage.[21] Also, in the recent case ofIntegrated Bar
of the Philippines v. Zamora,[22] we gave the same
liberal treatment to a petition filed by the Integrated
Bar of the Philippines (IBP). The IBP questioned the
validity of a Presidential directive deploying elements
of the Philippine National Police and the Philippine
Marines in Metro Manila to conduct patrols even
though the IBP presented too general an interest. We
held:
[T]he IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the

Constitution. Apart from this declaration, however, the

IBP asserts no other basis in support of its locus standi.
The mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by
other groups and the whole citizenry x x x.
Having stated the foregoing, this Court has the
discretion to take cognizance of a suit which does not
satisfy the requirement of legal standing when
paramount interest is involved. In not a few cases, the
court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to
craft an issue of transcendental significance to the
people. Thus, when the issues raised are of paramount
importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of
the petition shows that the IBP has advanced
constitutional issues which deserve the attention of
this Court in view of their seriousness, novelty and
weight as precedents. Moreover, because peace and
order are under constant threat and lawless violence
occurs in increasing tempo, undoubtedly aggravated
by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will
not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than
later.[23] (Emphasis supplied)

We accord the same treatment to petitioners in the

instant case in their capacity as voters since they raise
important issues involving their right of suffrage,
considering that the issue raised in this petition is
likely to arise again.
Whether a Special Election for a Single, ThreeYear Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a
special election may be called to fill any vacancy in the
Senate and the House of Representatives in the
manner prescribed by law, thus:
In case of vacancy in the Senate or in the House of
Representatives, a special election may be called to fill
such vacancy in the manner prescribed by law, but the
Senator or Member of the House of Representatives
thus elected shall serve only for the unexpired term.
(Emphasis supplied)

of the Senate or the House of Representatives, as the

case may be, certifying to the existence of such
vacancy and calling for a special election, shall hold a
special election to fill such vacancy. If Congress is in
recess, an official communication on the existence of
the vacancy and call for a special election by the
President of the Senate or by the Speaker of the House
of Representatives, as the case may be, shall be
sufficient for such purpose. The Senator or Member of
the House of Representatives thus elected shall serve
only for the unexpired term.
SECTION 2. 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. (Emphasis
supplied)

To implement this provision of the Constitution,

Congress passed R.A. No. 6645, which provides in
pertinent parts:

Section 4 of Republic Act No. 7166 subsequently

amended Section 2 of R.A. No. 6645, as follows:

SECTION 1. In case a vacancy arises in the Senate at

least eighteen (18) months or in the House of
Representatives at least one (1) year before the next
regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution

Postponement, Failure of Election and Special

Elections. x x x In case a permanent vacancy shall
occur in the Senate or House of Representatives at
least one (1) year before the expiration of the term,
the Commission shall call and hold a special election to
fill the vacancy not earlier than sixty (60) days nor

longer than ninety (90) days after the occurrence of

the vacancy. However, in case of such vacancy in the
Senate, the special election shall be held
simultaneously with the next succeeding regular
election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least
one year before the expiration of the term, Section 2 of
R.A. No. 6645, as amended, requires COMELEC: (1) to
call a special election by fixing the date of the special
election, which shall not be earlier than sixty (60) days
nor later than ninety (90) after the occurrence of the
vacancy but in case of a vacancy in the Senate, the
special election shall be held simultaneously with the
next succeeding regular election; and (2) to give
notice to the voters of, among other things, the office
or offices to be voted for.
Did COMELEC, in conducting the special senatorial
election simultaneously with the 14 May 2001 regular
elections, comply with the requirements in Section 2 of
R.A. No. 6645?

May 2001. Nor did COMELEC give formal notice that it

would proclaim as winner the senatorial candidate
receiving the 13thhighest number of votes in the
special election.
The controversy thus turns on whether COMELECs
failure, assuming it did fail, to comply with the
requirements in Section 2 of R.A. No. 6645, as
amended, invalidated the conduct of the special
senatorial election on 14 May 2001 and accordingly
rendered Honasans proclamation as the winner in that
special election void. More precisely, the question is
whether the special election is invalid for lack of a call
for such election and for lack of notice as to the office
to be filled and the manner by which the winner in the
special election is to be determined. For reasons stated
below, the Court answers in the negative.
COMELECs Failure to Give Notice
of the Time of the Special Election Did Not
Negate the Calling of such Election

A survey of COMELECs resolutions relating to the

conduct of the 14 May 2001 elections reveals that they
contain nothing which would amount to a compliance,
either strict or substantial, with the requirements in
Section 2 of R.A. No. 6645, as amended. Thus,
nowhere in its resolutions[24] or even in its press
releases[25] did COMELEC state that it would hold a
special election for a single three-year term Senate
seat simultaneously with the regular elections on 14

The calling of an election, that is, the giving notice

of the time and place of its occurrence, whether made
by the legislature directly or by the body with the duty
to give such call, is indispensable to the elections
validity.[26] In a general election, where the law fixes
the date of the election, the election is valid without
any call by the body charged to administer the
election.[27]

In a special election to fill a vacancy, the rule is

that a statute that expressly provides that an election
to fill a vacancy shall be held 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 Vice-President 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 special election to fill the vacancy. Indeed, it will
be well-nigh impossible for the voters in the
congressional district involved to know the time and
place of the special election and the office to be filled
unless the COMELEC so notifies them.
No Proof that COMELECs
Failure to Give Notice of the Office
to be Filled and the Manner of

Determining the Winner in the Special

Election Misled Voters
The test in determining the validity of a special
election in relation to the failure to give notice of the
special election is whether the want of notice has
resulted in misleading a sufficient number of voters as
would change the result of the special election. If the
lack of official notice misled a substantial number of
voters who wrongly believed that there was no special
election to fill a vacancy, a choice by a small
percentage of voters would be void.[32]
The required notice to the voters in the 14 May
2001
special
senatorial
election
covers
two
matters. First, that COMELEC will hold a special
election to fill a vacant single three-year term Senate
seat simultaneously with the regular elections
scheduled on the same date. Second, that COMELEC
will proclaim as winner the senatorial candidate
receiving the 13th highest number of votes in the
special election. Petitioners have neither claimed nor
proved that COMELECs failure to give this required
notice misled a sufficient number of voters as would
change the result of the special senatorial election or
led them to believe that there was no such special
election.
Instead, what petitioners did is conclude that since
COMELEC failed to give such notice, no special election
took
place.
This
bare
assertion
carries
no

value. Section 2 of R.A. No. 6645, as amended,

charged those who voted in the elections of 14 May
2001 with the knowledge that the vacancy in the
Senate arising from Senator Guingonas appointment
as Vice-President in February 2001 was to be filled in
the next succeeding regular election of 14 May 2001.
Similarly, the absence of formal notice from COMELEC
does not 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]
Otherwise, the consistent rule has been to respect
the electorates will and let the results of the election
stand, despite irregularities that may have attended

the conduct of the elections. [35] This is but to

acknowledge the purpose and role of elections in a
democratic society such as ours, which is:
to give the voters a direct participation in the affairs of
their government, either in determining who shall be
their public officials or in deciding some question of
public interest; and for that purpose all of the legal
voters should be permitted, unhampered and
unmolested, to cast their ballot. When that is done and
no frauds have been committed, the ballots should be
counted and the election should not be declared
null. Innocent voters should not be deprived of their
participation in the affairs of their government for
mere irregularities on the part of the election officers,
for which they are in no way responsible. A different
rule would make the mannerand method of performing
a public duty of greater importance than
the duty itself.[36] (Emphasis in the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645,
Neither is there basis in petitioners claim that the
manner by which COMELEC conducted the special
senatorial election on 14 May 2001 is a nullity because
COMELEC failed to document separately the
candidates and to canvass separately the votes cast
for the special election. No such requirements exist in
our election laws. What is mandatory under Section 2
of R.A. No. 6645 is that COMELEC fix the date of the

election, if necessary, and state, among others, the

office or offices to be voted for. Similarly, petitioners
reliance on Section 73 of B.P. Blg. 881 on the filing of
certificates of candidacy, and on Section 4(4) of R.A.
No. 6646 on the printing of election returns and tally
sheets, to support their claim is misplaced. These
provisions govern elections in general and in no way
require separate documentation of candidates or
separate canvass of votes in a jointly held regular and
special elections.
Significantly, the method adopted by COMELEC in
conducting the special election on 14 May 2001 merely
implemented the procedure specified by the Senate in
Resolution No. 84. Initially, the original draft of
Resolution No. 84 as introduced by Senator Francisco
Tatad (Senator Tatad) made no mention of the manner
by which the seat vacated by former Senator Guingona
would be filled.However, upon the suggestion of
Senator Raul Roco (Senator Roco), the Senate agreed
to amend Resolution No. 84 by providing, as it now
appears, that 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. Senator Roco introduced the
amendment to spare COMELEC and the candidates
needless expenditures
and
the
voters
further
inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now
consider Proposed Senate Resolution No. 934 [later
converted to Resolution No. 84].

T[HE] P[RESIDENT]. Is there any

objection? [Silence] There being none, the motion is
approved.

WHEREAS, Senator Guingona will take his Oath of

Office as Vice-President of the Philippines on February
9, 2001;

Consideration of Proposed Senate Resolution No. 934

is now in order. With the permission of the Body, the
Secretary will read only the title and text of the
resolution.

WHEREAS, Republic Act No. 7166 provides that the

election for twelve (12) Senators, all elective Members
of the House of Representatives, and all elective
provincial city and municipal officials shall be held on
the second Monday and every three years thereafter;
Now, therefore, be it

T[HE] S[ECRETARY]. Proposed Senate Resolution No.

934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A
VACANCY IN THE SENATE AND CALLING ON THE
COMMISSION ON ELECTIONS (COMELEC) TO FILL UP
SUCH VACANCY THROUGH ELECTION TO BE HELD
SIMULTANEOUSLY WITH THE REGULAR ELECTION ON
MAY 14, 2001 AND THE SENATOR THUS ELECTED TO
SERVE ONLY FOR THE UNEXPIRED TERM

RESOLVED by the Senate, as it is hereby resolved, to

certify, as it hereby certifies, the existence of a
vacancy in the Senate and calling the Commission on
Elections (COMELEC) to fill up such vacancy through
election to be held simultaneously with the regular
election on May 14, 2001 and the Senator thus elected
to serve only for the unexpired term.
Adopted,

WHEREAS, the Honorable Teofisto T. Guingona, Jr. was

elected Senator of the Philippines in 1998 for a term
which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency
President Gloria Macapagal Arroyo nominated Senator
Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has
been confirmed by a majority vote of all the members
of both House of Congress, voting separately;

(Sgd.) FRANCISCO
S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the
adoption of this resolution.
S[ENATOR] O[SMEA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.

S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will

the distinguished Majority Leader, Chairman of the
Committee on Rules, author of this resolution, yield for
a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President.
[Laughter]
S[ENATOR] O[SMEA] (J). What a way of flattery.
[Laughter]
Mr. President, I think I recall that sometime in 1951 or
1953, there was a special election for a vacant seat in
the Senate. As a matter of fact, the one who was
elected in that special election was then Congressman,
later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates
contested the seat. In other words, the electorate had
to cast a vote for a ninth senator because at that time
there were only eight to elect a member or rather, a
candidate to that particular seat.
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 three-year
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] T[ATAD]. Mr. President, in this resolution,
we are leaving the mechanics to the Commission on
Elections. But personally, I would like to suggest that
probably, the candidate obtaining the 13 th largest
number of votes be declared as elected to fill up the
unexpired term of Senator Guingona.
S[ENATOR] O[SMEA] (J). Is there a law that would allow
the Comelec to conduct such an election? Is it not the
case that the vacancy is for a specific office? I am
really at a loss. I am rising here because I think it is
something that we should consider. I do not know if we
can No, this is not a Concurrent Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of
the Senate President.
T[HE] P[RESIDENT]. May I share this information that
under Republic Act No. 6645, what is needed is a
resolution of this Chamber calling attention to the
need for the holding of a special election to fill up the
vacancy created, in this particular case, by the
appointment of our colleague, Senator Guingona, as
Vice President.
It can be managed in the Commission on Elections so
that a slot for the particular candidate to fill up would

be that reserved for Mr. Guingonas unexpired term. In

other words, it can be arranged in such a manner.

S[ENATOR] R[OCO]. Yes. The Comelec will not have the

flexibility.

xxxx

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. Mr. President.

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.

T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

S[ENATOR] R[OCO]. May we suggest, subject to a oneminute caucus, wordings to the effect that in the
simultaneous elections, the 13th placer be therefore
deemed to be the special election for this purpose. So
we just nominate 13 and it is good for our
colleagues. It is better for the candidates. It is also less
expensive because the ballot will be printed and there
will be less disfranchisement.

T[HE] P[RESIDENT]. Yes. That will be a good

compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can
introduce that later, maybe it will be better, Mr.
President.
T[HE] P[RESIDENT]. What does the sponsor say?

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. If we can just deem it therefore
under this resolution to be such a special election,
maybe, we satisfy the requirement of the law.

S[ENATOR] T[ATAD]. Mr. President, that is a most

satisfactory proposal because I do not believe that
there will be anyone running specifically
T[HE] P[RESIDENT]. Correct.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a

guidance for the Comelec.

S[ENATOR] T[ATAD]. to fill up this position for three

years and campaigning nationwide.

S[ENATOR] R[OCO]. Yes.

T[HE] P[RESIDENT]. to implement.

T[HE] P[RESIDENT]. Actually, I think what is going to

happen is the 13th candidate will be running with
specific groups.

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.

T[HE] P[RESIDENT]. I think we can specifically define
that as the intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that
amendment and if there will be no other amendment, I
move for the adoption of this resolution.
xxxx
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move
that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this
resolution. Is there any objection? [Silence] There
being none, the motion is approved.[37]
Evidently, COMELEC, in the exercise of its
discretion to use means and methods to conduct the
special election within the confines of R.A. No. 6645,
merely chose to adopt the Senates proposal, as
embodied in Resolution No. 84. This Court has
consistently acknowledged and affirmed COMELECs
wide latitude of discretion in adopting means to carry
out its mandate of ensuring free, orderly, and honest
elections subject only to the limitation that the means
so adopted are not illegal or do not constitute grave
abuse of discretion.[38] COMELECs decision to abandon
the means it employed in the 13 November 1951 and

8 November 1955 special elections and adopt the

method embodied in Resolution No. 84 is but a
legitimate exercise of its discretion. Conversely, this
Court will not interfere should COMELEC, in
subsequent special senatorial elections, choose to
revert to the means it followed in the 13 November
1951 and 8 November 1955 elections. That COMELEC
adopts means that are novel or even disagreeable is
no reason to adjudge it liable for grave abuse of
discretion. As we have earlier noted:
The Commission on Elections is a constitutional
body. It is intended to play a distinct and important
part in our scheme of government. In the discharge of
its functions, it should not be hampered with
restrictions that would be fully warranted in the case of
a less responsible organization. The Commission may
err, so may this Court also. It should be allowed
considerable latitude in devising means and methods
that will insure the accomplishment of the great
objective for which it was created free, orderly and
honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this court should
not interfere.[39]
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
applicable laws relative to the conduct of regular
elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of
merit.
SO ORDERED.

G.R. No. L-2821

March 4, 1949

JOSE AVELINO, petitioner,

vs.
MARIANO J. CUENCO, respondent.

Vicente J. Francisco for petitioner.

Office of the Solicitor General Felix Angelo Bautista, Ramon
Diokno and Lorenzo M. Taada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines &
Navarro; Felixberto M. Serrano and Vicente del Rosario as amici
curiae.
RESOLUTION
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six
justices against four resolved to deny the petition.
Without prejudice to the promulgation of a more extended
opinion, this is now written briefly to explain the principal grounds
for the denial.
The Court believes the following essential facts have been
established:
In the session of the Senate of February 18, 1949, Senator
Lorenzo M. Taadare quested that his right to speak on the next
session day, February 21, 1949, to formulate charges against the
then Senate President Jose Avelino be reserved. His request was
approved.
On February 21, 1949, hours before the opening of the session
Senator Taada and Senator Taada and Senator Prospero
Sanidad filed with the Secretary of the Senate a resolution
enumerating charges against the then Senate President and
ordering the investigation thereof.
Although a sufficient number of senators to constitute
a quorum were at the Senate session hall at the appointed time
(10:00 A.M.), and the petitioner was already in his office, said
petitioner delayed his appearance at the session hall until about
11:35 A.M. When he finally ascended the rostrum, he did not
immediately open the session, but instead requested from the

Secretary a copy of the resolution submitted by Senators Taada

and Sanidad and in the presence of the public he read slowly and
carefully said resolution, after which he called and conferred with
his colleagues Senator Francisco and Tirona.
Shortly before 12:00 noon, due to the session be opened, the
petitioner finally called the meeting to order. Except Senator Sotto
who was confined in a hospital and Senator Confesor who is in
the United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved
that the roll call be dispensed with, but Senator Tirona opposed
said motion, obviously in pursuance of a premeditated plan of
petitioner and his partisans to make use of dilatory tactics to
prevent Senator Taada from delivering his privilege speech. The
roll was called.
Senator Sanidad next moved, as is the usual practice, to
dispense with the reading of the minutes, but this motion was
likewise opposed by Senator Tirona and David, evidently, again,
in pursuance of the above-mentioned conspiracy.
Before and after the roll call and before and after the reading of
the minutes, Senator Taada repeatedly stood up to claim his
right to deliver his one-hour privilege speech but the petitioner,
then presiding, continuosly ignored him; and when after the
reading of the minutes, Senator Taada instead on being
recognized by the Chair, the petitioner announced that he would
order the arrest of any senator who would speak without being
previously recognized by him, but all the while, tolerating the
actions of his follower, Senator Tirona, who was continuously
shouting at Senator Sanidad "Out of order!" everytime the latter
would ask for recognition of Senator Taada.
At this juncture, some disorderly conduct broke out in the Senate
gallery, as if by pre-arrangement. At about this same time Senator
Pablo Angeles David, one of the petitioner's followers, was

recognized by petitioner, and he moved for adjournment of

session, evidently, again, in pursuance of the above-mentioned
conspiracy to muzzle Senator Taada.
Senator Sanidad registered his opposition to the adjournment of
the session and this opposition was seconded by herein
respondent who moved that the motion of adjournment be
submitted to a vote. Another commotion ensued.
Senator David reiterated his motion for adjournment and herein
respondent also reiterated his opposition to the adjournment and
again moved that the motion of Senator David be submitted to a
vote.
Suddenly, the petitioner banged the gavel and abandoning the
Chair hurriedly walked out of the session hall followed by Senator
David, Tirona, Francisco, Torres, Magalona and Clarin, while the
rest of the senators remained. Whereupon Senator Melencio
Arranz, Senate President Pro-tempore, urged by those senators
present took the Chair and proceeded with the session.
Senator Cabili stood up, and asked that it be made of record it
was so made that the deliberate abandonment of the Chair by
the petitioner, made it incumbent upon Senate President Protempore Arranz and the remaining members of the Senate to
continue the session in order not to paralyze the functions of the
Senate.
Senate President Pro-tempore Arranz then suggested that
respondent be designated to preside over the session which
suggestion was carried unanimously. the respondent thereupon
took the Chair.
Upon motion of Senator Arranz, which was approved Gregorio
Abad was appointedActing Secretary, because the Assistance
Secretary, who was then acting as Secretary, had followed the
petitioner when the latter abandoned the session.

Senator Taada, after being recognized by the Chair, was then

finally able to deliver his privilege speech. Thereafter Senator
Sanidad read aloud the complete text of said Resolution (No. 68),
and submitted his motion for approval thereof and the same was
unanimously approved.
With Senate President Pro-tempore Arranz again occupying the
Chair, after the respondent had yielded it to him, Senator Sanidad
introduced Resolution No. 67, entitled "Resolution declaring
vacant the position of the President of the Senate and designated
the Honorable Mariano Jesus Cuenco Acting President of the
Senate." Put to a vote, the said resolution was unanimously
approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized the
respondent as acting president of the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked
the Court to declare him the rightful President of the Philippines
senate and oust respondent.
The Court has examined all principal angles of the controversy
and believes that these are the crucial points:
a. Does the Court have jurisdiction over the subject-matter?
b. If it is has, were resolution Nos. 68 and 67 validly approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in view of the
separation of powers, the political nature of the controversy
(Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77 Phil.,
192; Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional
grant to the Senate of the power to elect its own president, which

power should not be interfered with, nor taken over, by the

judiciary. We refused to take cognizance of the Vera case even if
the rights of the electors of the suspended senators were alleged
affected without any immediate remedy. A fortiori we should
abstain in this case because the selection of the presiding officer
affect only the Senators themselves who are at liberty at any
time to choose their officers, change or reinstate them. Anyway, if,
as the petition must imply to be acceptable, the majority of the
Senators want petitioner to preside, his remedy lies in the Senate
Session Hall not in the Supreme Court.
The Court will not sally into the legitimate domain of the Senate
on the plea that our refusal to intercede might lead into a crisis,
even a resolution. No state of things has been proved that might
change the temper of the Filipino people as a peaceful and lawabiding citizens. And we should not allow ourselves to be
stampeded into a rash action inconsistent with the calm that
should characterized judicial deliberations.
The precedent of Werts vs. Roger does not apply, because
among other reasons, the situation is not where two sets of
senators have constituted themselves into two senates actually
functioning as such, (as in said Werts case), there being no
question that there is presently one Philippines Senate only. To
their credit be it recorded that petitioner and his partisans have
not erected themselves into another Senate. The petitioner's
claim is merely that respondent has not been duly elected in his
place in the same one Philippines Senate.
It is furthermore believed that the recognition accorded by the
Chief Executive to the respondent makes it advisable, more than
ever, to adopt the hands-off policy wisely enunciated by this Court
in matters of similar nature.
The second question depends upon these sub-questions. (1)
Was the session of the so-called rump Senate a continuation of
the session validly assembled with twenty two Senators in the
morning of February 21, 1949?; (2) Was there a quorum in that

session? Mr. Justice Montemayor and Mr. Justice Reyes deem it

useless, for the present to pass on these questions once it is
held, as they do, that the Court has no jurisdiction over the case.
What follows is the opinion of the other four on those four on
those sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the
view that the session under Senator Arranz was a continuation of
the morning session and that a minority of ten senators may not,
by leaving the Hall, prevent the other twelve senators from
passing a resolution that met with their unanimous endorsement.
The answer might be different had the resolution been approved
only by ten or less.
If the rump session was not a continuation of the morning
session, was it validly constituted? In other words, was there the
majority required by the Constitution for the transaction of the
business of the Senate? Justice Paras, Feria, Pablo and Bengzon
say there was, firstly because the minute say so, secondly,
because at the beginning of such session there were at least
fourteen senators including Senators Pendatun and Lopez, and
thirdly because in view of the absence from the country of
Senator Tomas Confesor twelve senators constitute a majority of
the Senate of twelve three senators. When the Constitution
declares that a majority of "each House" shall constitute
aquorum, "the House: does not mean "all" the members. Even a
majority of all the members constitute "the House". (Missouri
Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a difference
between a majority of "the House", the latter requiring less
number than the first. Therefore an absolute majority (12) of all
the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose of a quorum.
Mr. Justice Pablo believes furthermore than even if the twelve did
not constitute a quorum, they could have ordered the arrest of
one, at least, of the absent members; if one had been so
arrested, there would be no doubt Quorum then, and Senator
Cuenco would have been elected just the same inasmuch as

there would be eleven for Cuenco, one against and one

abstained.
In fine, all the four justice agree that the Court being confronted
with the practical situation that of the twenty three senators who
may participate in the Senate deliberations in the days
immediately after this decision, twelve senators will support
Senator Cuenco and, at most, eleven will side with Senator
Avelino, it would be most injudicious to declare the latter as the
rightful President of the Senate, that office being essentially one
that depends exclusively upon the will of the majority of the
senators, the rule of the Senate about tenure of the President of
that body being amenable at any time by that majority. And at any
session hereafter held with thirteen or more senators, in order to
avoid all controversy arising from the divergence of opinion here
aboutquorum and for the benefit of all concerned,the said twelve
senators who approved the resolutions herein involved could
ratify all their acts and thereby place them beyond the shadow of
a doubt.
As already stated, the six justices hereinabove mentioned voted
to dismiss the petition. Without costs.

Separate Opinions
MORAN, C.J., concurring:
I believe that this Court has jurisdiction over the case.1 The
present crisis in the Senate is one that imperatively calls for the
intervention of the Court.
Respondent Cuenco cannot invoke the doctrine of noninterference by the courts with the Senate because the legal
capacity of his group of twelve senators to acts as a senate is

being challenged by petitioner on the groundof lack

of quorum (Attorney General ex rel. Werts vs. Rogers et al., Atl.
726; 23 L. R. A., 352). If this group is found sufficient to constitute
a quorum under the Constitution, then its proceedings should be
free from interference. But if it is not possessed of a valid quorum,
then its proceedings should be voided.
The issue as to the legal capacity of the Cuenco group to act as a
senate cannot be considered a political question the
determination of which devolves exclusively upon the Senate.
That issue involves a constitutional question which cannot be
validly decided either by the Cuenco group or by the Avelino
group separately, for, if the Cuenco group has no quorum, the
Avelino has decidedly less. And for obvious reasons, the two
groups cannot act together inasmuch as the members of the
Avelino group, possibly to avoid trouble, do not attend the
sessions presided by the respondent believing as they do that the
latter was illegally elected. Upon the other hand, the Cuenco
group believing itself as possessing the constitutional quorum and
not desiring to make any semblance of admission to the contrary,
does not find it convenient to compel the attendance of any
senator of the Avelino group. Then the question arises--who will
decide the conflict between the two groups? This anomalous
situation will continue while the conflict remains unsettled, and the
conflict will remain unsettled while this Court refuses to intervene.
In the meantime the validity of all the laws, resolutions and other
measures which may be passed by the Cuenco group will be
open to doubt because of an alleged lack of quorum in the body
which authored them. This doubt may extend, in diverse forms, to
the House of Representative and to the other agencies of the
government such as the Auditor General's Office. Thus, a general
situation of uncertainty, pregnant with grave dangers, is
developing into confusion and chaos with severe harm to the
nation. This situation may, to a large extent, be stopped and
constitutional processes may be restored in the Senate if only this
Court, as the guardian of the Constitutional, were to pronounce
the final word on the constitutional mandate governing the
existing conflict between the two groups. And, in my opinion,

under the present circumstances, this Court has no other

alternative but to meet challenge of the situation which demands
the utmost of judicial temper and judicial statesmanship. As
hereinbefore stated, the present crisis in the Senate is one that
imperatively calls for the intervention of this Court.
As to the legality of respondent's election as acting President of
the Senate,2I firmly believe that although petitioner's adjournment
of the session of February 21, 1949, was illegality cannot be
countered with another illegality. The session wherein respondent
was elected as acting President of the Senate was illegal
because when Senator Mabanag raised the question of
a quorum and the roll was called, only twelve senators were
present. In the Philippines there are twenty-four senators, and
therefore, the quorum must be thirteen. The authorities on the
matter are clear.
The constitution of our state ordains that a majority of
each house shall constitute a quorum. the house of
representative consist of 125 members; 63 is a majority
and quorum. When a majority or quorum are present, the
house can do business; not otherwise.
A quorum possessed all the powers of the whole body, a
majority of which quorum must, of course, govern. (In
re Gunn, 50 Kan., 155; 32 P., 470, 476; 19 L.R.A., 519.)
Quorum as used in U. S. C. A. Const. Art. 4 sec. 8,
providing that a majority of each house shall constitute
aquorum to do business, is, for the purpose of the
Assembly, not less than the majority of the whole number
of which the house may be composed. Vacancies from
death, resignation or failure to elect cannot be deducted
in ascertaining the quorum. (Opinion of Justice, 12 Fla.
653.)

The general rule is that a quorum is a majority of all the

members and a majority of this majority may legislate and
do the work of the whole. (State vs. Ellington 117 N. C.,
158; 23 S. E. 250-252, 30 L.R.A., 532; 53 Am. SR., 580.)
. . . a majority of each House is necessary to transact
business, and a minority cannot transact business, this
view being in keeping with the provision of the
Constitution permitting a smaller number than a quorumto
adjourn from day to day merely. (Earp vs. Riley, 40 OKL.,
340; p. 164; Ralls vs. Wyand, 40 OKL., 323; 138 P. 158.)
The Constitution provides that "a majority of each (house)
shall constitute a quorum to do business." In other words,
when a majority are present the House is in a position to
do business. Its capacity to transact business is then
established, created by the mere presence of a majority,
and depend upon the disposition or assent or action of
any single member or faction of the majority present. All
that the Constitution required is the presence of a
majority, and when that majority are present, the power of
the House arises. (U. S. vs.Ballin, Joseph & Co., 36 Law
ed. 321, 325.)
If all the members of the select body or committee, or if all
the agents are assembled, or if all have been duly
notified, and the minority refuse, or neglect to meet with
the other, a majority of those present may act,provided
those present constitute a majority of the whole number.
In other words, in such case, a major part of the whole is
necessary to constitute a quorum, and a majority of
the quorum may act. If the major part withdraw so as to
leave no quorum, the power of the minority to act is, in
general, considered to cease. (1 Dillon, Mun. Corp. 4th
ed., sec. 283.)3
Therefore, without prejudice to writing a more extensive opinion, if
necessary, I believe that respondent Mariano J. Cuenco has not

been legally elected as acting President of the Senate. It is true

that respondent Cuenco, in fact, must be the Senate President
because he represent the majority of the members now present in
Manila, and, at any new session with a quorum, upon the present
senatorial alignment, he will be elected to said office. But
precisely he is now the master of the situation, he must win his
victory in accordance with the Constitution. It is absolutely
essential in the adolescent life of our Republic to insist, strictly
and uncompromisingly, on thedemocratic principles consecrated
in our Constitution. By such efforts alone can we insure the future
of our political life as a republican form of government under the
sovereignty of a Constitution from being a mockery.
The situation now in this Court is this there are four members
who believe that there was no quorum in respondent's election as
against four other member who believe that there was
such quorum. Two members declined to render their opinion on
the matter because of their refusal to assume jurisdiction. And,
one member is absent from the Philippines. Thus, the question of
whether or not respondent has been legally elected is, to say the
least, doubtful in this Court under the present conditions. This
doubt, which taint the validity of all the laws, resolutions and other
measures that the Cuenco group has passed and may pass in
the future, can easily be dispelled by them by convening a
session wherein thirteen senators are present and by reiterating
therein all that has been previously done by them. This is a
suggestion coming from a humble citizen who is watching with a
happy heart the movement of this gallant group of prominent
leaders campaigning for a clean and honest government in this
dear country of ours.

JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN

HENRY R. OSMEA, WIGBERTO E. TAADA,
and RONALDO B. ZAMORA, petitioners, vs.
JOSE DE VENECIA, RAUL DAZA, RODOLFO

ALBANO, THE EXECUTIVE SECRETARY, THE

SECRETARY
OF
FINANCE,
AND
THE
COMMISSIONER
OF
INTERNAL
REVENUE,respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari and/or prohibition
challenging the validity of Republic Act No. 8240,
which amends certain provisions of the National
Internal Revenue Code by imposing so-called sin taxes
(actually specific taxes) on the manufacture and sale
of beer and cigarettes.
Petitioners are members of the House of
Representatives. They brought this suit against
respondents Jose de Venecia, Speaker of the House of
Representatives, Deputy Speaker Raul Daza, Majority
Leader Rodolfo Albano, the Executive Secretary, the
Secretary of Finance, and the Commissioner of Internal
Revenue, charging violation of the rules of the House
which petitioners claim are constitutionally mandated
so that their violation is tantamount to a violation of
the Constitution.
The law originated in the House of Representatives
as H. No. 7198. This bill was approved on third reading
on September 12, 1996 and transmitted on September
16, 1996 to the Senate which approved it with certain
amendments on third reading on November 17, 1996.

A bicameral conference committee was formed to

reconcile the disagreeing provisions of the House and
Senate versions of the bill.
The bicameral conference committee submitted its
report to the House at 8 a.m. on November 21,
1996. At 11:48 a.m., after a recess, Rep. Exequiel
Javier, chairman of the Committee on Ways and
Means, proceeded to deliver his sponsorship speech,
after which he was interpellated. Rep. Rogelio
Sarmiento was first to interpellate. He was interrupted
when Rep. Arroyo moved to adjourn for lack
of quorum. Rep. Antonio Cuenco objected to the
motion and asked for a head count. After a roll call, the
Chair (Deputy Speaker Raul Daza) declared the
presence of a quorum.[1] Rep. Arroyo appealed the
ruling of the Chair, but his motion was defeated when
put to a vote. The interpellation of the sponsor
thereafter proceeded.
Petitioner Rep. Joker Arroyo registered to
interpellate. He was fourth in the order, following Rep.
Rogelio Sarmiento, Rep. Edcel C. Lagman and Rep.
Enrique Garcia. In the course of his interpellation, Rep.
Arroyo announced that he was going to raise a
question on the quorum, although until the end of his
interpellation he never did. What happened thereafter
is shown in the following transcript of the session on
November 21, 1996 of the House of Representatives,
as published by Congress in the newspaper issues of
December 5 and 6, 1996:

MR. ALBANO. Mr. Speaker, I move that we now

approve and ratify the conference
committee report.
THE DEPUTY SPEAKER (Mr. Daza). Any
objection to the motion?

(3:40 p.m., the session was resumed)

THE DEPUTY SPEAKER (Mr. Daza). The session
is resumed.
MR. ALBANO. Mr. Speaker, I move to adjourn
until four oclock, Wednesday, next week.

MR. ARROYO. What is that, Mr. Speaker?

THE DEPUTY SPEAKER (Mr. Daza). There being
none, approved.

THE DEPUTY SPEAKER (Mr. Daza). The session

is adjourned until four oclock, Wednesday,
next week.

(Gavel)

(It was 3:40 p.m.)

MR. ARROYO. No, no, no, wait a minute, Mr.

Speaker, I stood up. I want to know what is
the question that the Chair asked the
distinguished sponsor.
THE DEPUTY SPEAKER (Mr. Daza). There was a
motion by the Majority Leader for approval
of the report, and the Chair called for the
motion.
MR. ARROYO. Objection, I stood up, so I wanted
to object.
THE DEPUTY SPEAKER (Mr. Daza). The session
is suspended for one minute.
(It was 3:01 p.m.)

On the same day, the bill was signed by the

Speaker of the House of Representatives and the
President of the Senate and certified by the respective
secretaries of both Houses of Congress as having been
finally passed by the House of Representatives and by
the Senate on November 21, 1996. The enrolled bill
was signed into law by President Fidel V. Ramos on
November 22, 1996.
Petitioners claim that there are actually four
different versions of the transcript of this portion of
Rep. Arroyos interpellation: (1) the transcript of audiosound recording of the proceedings in the session hall
immediately after the session adjourned at 3:40 p.m.
on November 21, 1996, which petitioner Rep. Edcel C.
Lagman obtained from the operators of the sound
system; (2) the transcript of the proceedings from 3:00
p.m. to 3:40 p.m. of November 21, 1996, as certified

by the Chief of the Transcription Division on November

21, 1996, also obtained by Rep. Lagman; (3) the
transcript of the proceedings from 3:00 p.m. to 3:40
p.m. of November 21, 1996 as certified by the Chief of
the Transcription Division on November 28, 1996, also
obtained by Rep. Lagman; and (4) the published
version abovequoted. According to petitioners, the four
versions differ on three points, to wit: (1) in the audiosound recording the word approved, which appears on
line 13 in the three other versions, cannot be heard;
(2) in the transcript certified on November 21, 1996
the word no on line 17 appears only once, while in the
other versions it is repeated three times; and (3) the
published version does not contain the sentence (Y)ou
better prepare for a quorum because I will raise the
question of the quorum, which appears in the other
versions.
Petitioners allegations are vehemently denied by
respondents. However, there is no need to discuss this
point as petitioners have announced that, in order to
expedite the resolution of this petition, they admit,
without conceding, the correctness of the transcripts
relied upon by the respondents. Petitioners agree that
for purposes of this proceeding the word approved
appears in the transcripts.
Only
the
proceedings
of
the
House
of
Representatives on the conference committee report
on H. No. 7198 are in question. Petitioners principal
argument is that R.A. No. 8240 is null and void
because it was passed in violation of the rules of the

House; that these rules embody the constitutional

mandate in Art. VI, 16(3) that each House may
determine the rules of its proceedings and that,
consequently, violation of the House rules is a violation
of the Constitution itself. They contend that the
certification of Speaker De Venecia that the law was
properly passed is false and spurious.
More specifically, petitioners charge that (1) in
violation of Rule VIII, 35 and Rule XVII, 103 of the rules
of the House,[2] the Chair, in submitting the conference
committee report to the House, did not call for
the yeas or nays, but simply asked for its approval by
motion in order to prevent petitioner Arroyo from
questioning the presence of a quorum; (2) in violation
of Rule XIX, 112,[3] the Chair deliberately ignored Rep.
Arroyos question, What is that . . . Mr. Speaker? and
did not repeat Rep. Albanos motion to approve or
ratify; (3) in violation of Rule XVI, 97,[4] the Chair
refused to recognize Rep. Arroyo and instead
proceeded to act on Rep. Albanos motion and
afterward declared the report approved; and (4) in
violation of Rule XX, 121-122, Rule XXI, 123, and Rule
XVIII, 109,[5] the Chair suspended the session without
first ruling on Rep. Arroyos question which, it is
alleged, is a point of order or a privileged motion. It is
argued that Rep. Arroyos query should have been
resolved upon the resumption of the session on
November 28, 1996, because the parliamentary
situation at the time of the adjournment remained
upon the resumption of the session.

Petitioners also charge that the session was hastily

adjourned at 3:40 p.m. on November 21, 1996 and the
bill certified by Speaker Jose De Venecia to prevent
petitioner Rep. Arroyo from formally challenging the
existence
of
a quorum and
asking
for
a
reconsideration.
Petitioners urge the Court not to feel bound by the
certification of the Speaker of the House that the law
had been properly passed, considering the Courts
power under Art. VIII, 1 to pass on claims of grave
abuse of discretion by the other departments of the
government, and they ask for a reexamination of
Tolentino v. Secretary of Finance,[6] which affirmed the
conclusiveness of an enrolled bill, in view of the
changed membership of the Court.
The Solicitor General filed a comment in behalf of
all respondents. In addition, respondent De Venecia
filed a supplemental comment. Respondents defense
is anchored on the principle of separation of powers
and the enrolled bill doctrine. They argue that the
Court is not the proper forum for the enforcement of
the rules of the House and that there is no justification
for reconsidering the enrolled bill doctrine. Although
the Constitution provides in Art. VI, 16(3) for the
adoption by each House of its rules of proceedings,
enforcement of the rules cannot be sought in the
courts except insofar as they implement constitutional
requirements such as that relating to three readings on
separate days before a bill may be passed. At all
events, respondents contend that, in passing the bill

which became R.A. No. 8240, the rules of the House,

as well as parliamentary precedents for approval of
conference committee reports on mere motion, were
faithfully observed.
In his supplemental comment, respondent De
Venecia denies that his certification of H. No. 7198 is
false and spurious and contends that under the journal
entry rule, the judicial inquiry sought by the petitioners
is barred. Indeed, Journal No. 39 of the House of
Representatives, covering the sessions of November
20 and 21, 1996, shows that On Motion of Mr. Albano,
there being no objection, the Body approved the
Conference Committee Report on House Bill No. 7198.
[7]
This Journal was approved on December 2, 1996
over the lone objection of petitioner Rep. Lagman. [8]
After considering the arguments of the parties, the
Court finds no ground for holding that Congress
committed a grave abuse of discretion in enacting R.A.
No. 8240. This case is therefore dismissed.
First. It is clear from the foregoing facts that what
is alleged to have been violated in the enactment of
R.A. No. 8240 are merely internal rules of procedure of
the House rather than constitutional requirements for
the enactment of a law, i.e., Art. VI, 26-27. Petitioners
do not claim that there was no quorum but only that,
by some maneuver allegedly in violation of the rules of
the House, Rep. Arroyo was effectively prevented from
questioning the presence of a quorum.

Petitioners contend that the House rules were

adopted pursuant to the constitutional provision that
each House may determine the rules of its
proceedings[9] and that for this reason they are
judicially enforceable. To begin with, this contention
stands the principle on its head. In the decided cases,
[10]
the constitutional provision that each House may
determine the rules of its proceedings was invoked by
parties, although not successfully, precisely to support
claims of autonomy of the legislative branch to
conduct its business free from interference by
courts. Here petitioners cite the provision for the
opposite purpose of invoking judicial review.

But the cases, both here and abroad, in varying

forms of expression, all deny to the courts the power
to inquire into allegations that, in enacting a law, a
House of Congress failed to comply with its own rules,
in the absence of showing that there was a violation of
a constitutional provision or the rights of private
individuals. In Osmea v. Pendatun,[11] it was held: At
any rate, courts have declared that the rules adopted
by deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting
them. And
it
has
been
said
that
Parliamentary rules are merely procedural, and with
their observance, the courts have no concern. They
may be waived or disregarded by the legislative
body. Consequently, mere failure to conform to
parliamentary usage will not invalidate the action
(taken by a deliberative body) when the requisite
number of members have agreed to a particular
measure.
In United States v. Ballin, Joseph & Co.,[12] the rule
was stated thus: The Constitution empowers each
house to determine its rules of proceedings. It may not
by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable
relation between the mode or method of proceeding
established by the rule and the result which is sought
to be attained. But within these limitations all matters
of method are open to the determination of the House,
and it is no impeachment of the rule to say that some
other way would be better, more accurate, or even
more just. It is no objection to the validity of a rule that

a different one has been prescribed and in force for a

length of time. The power to make rules is not one
which once exercised is exhausted. It is a continuous
power, always subject to be exercised by the House,
and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal.
In Crawford v. Gilchrist,[13] it was held: The
provision that each House shall determine the rules of
its proceedings does not restrict the power given to a
mere formulation of standing rules, or to the
proceedings of the body in ordinary legislative
matters; but in the absence of constitutional restraints,
and
when
exercised
by
a
majority
of
a
constitutional quorum, such authority extends to a
determination of the propriety and effect of any action
as it is taken by the body as it proceeds in the exercise
of any power, in the transaction of any business, or in
the performance of any duty conferred upon it by the
Constitution.
In State ex rel. City Loan & Savings Co. v. Moore,
the Supreme Court of Ohio stated: The provision for
reconsideration is no part of the Constitution and is
therefore entirely within the control of the General
Assembly. Having made the rule, it should be
regarded, but a failure to regard it is not the subjectmatter of judicial inquiry. It has been decided by the
courts of last resort of many states, and also by the
United States Supreme Court, that a legislative act will
not be declared invalid for noncompliance with rules.
[14]

In State v. Savings Bank,[15] the Supreme Court of

Errors of Connecticut declared itself as follows: The
Constitution declares that each house shall determine
the rules of its own proceedings and shall have all
powers necessary for a branch of the Legislature of a
free and independent state. Rules of proceedings are
the servants of the House and subject to its
authority. This authority may be abused, but when the
House has acted in a matter clearly within its power, it
would
be
an
unwarranted
invasion
of
the
independence of the legislative department for the
court to set aside such action as void because it may
think that the House has misconstrued or departed
from its own rules of procedure.
In McDonald v. State,[16] the Wisconsin Supreme
Court held: When it appears that an act was so passed,
no inquiry will be permitted to ascertain whether the
two houses have or have not complied strictly with
their own rules in their procedure upon the bill,
intermediate its introduction and final passage. The
presumption is conclusive that they have done so. We
think no court has ever declared an act of the
legislature void for non-compliance with the rules of
procedure made by itself, or the respective branches
thereof, and which it or they may change or suspend
at will. If there are any such adjudications, we decline
to follow them.
Schweizer v. Territory[17] is illustrative of the rule in
these cases. The 1893 Statutes of Oklahoma provided
for three readings on separate days before a bill may

be passed by each house of the legislature, with the

proviso that in case of an emergency the house
concerned may, by two-thirds vote, suspend the
operation of the rule. Plaintiff was convicted in the
district court of violation of a law punishing
gambling. He appealed contending that the gambling
statute was not properly passed by the legislature
because the suspension of the rule on three readings
had not been approved by the requisite two-thirds
vote. Dismissing this contention, the State Supreme
Court of Oklahoma held:
We have no constitutional provision requiring that the
legislature should read a bill in any particular
manner. It may, then, read or deliberate upon a bill as
it sees fit, either in accordance with its own rules, or in
violation thereof, or without making any rules. The
provision of section 17 referred to is merely a statutory
provision for the direction of the legislature in its
action upon proposed measures. It receives its entire
force from legislative sanction, and it exists only at
legislative pleasure. The failure of the legislature to
properly weigh and consider an act, its passage
through the legislature in a hasty manner, might be
reasons for the governor withholding his signature
thereto; but this alone, even though it is shown to be a
violation of a rule which the legislature had made to
govern its own proceedings, could be no reason for the
courts refusing its enforcement after it was actually
passed by a majority of each branch of the legislature,
and duly signed by the governor. The courts cannot
declare an act of the legislature void on account of

noncompliance with rules of procedure made by itself

to govern its deliberations. McDonald v. State, 80 Wis.
407, 50 N.W. 185; In re Ryan, 80 Wis. 414, 50 N. W.
187; State v. Brown, 33 S.C. 151, 11 S. E. 641; Railway
Co. v. Gill, 54 Ark. 101, 15 S. W. 18.
We conclude this survey with the useful summary
of the rulings by former Chief Justice Fernando,
commenting on the power of each House of Congress
to determine its rules of proceedings. He wrote:
Rules are hardly permanent in character. The
prevailing view is that they are subject to revocation,
modification or waiver at the pleasure of the body
adopting them as they are primarily procedural. Courts
ordinarily have no concern with their observance. They
may be waived or disregarded by the legislative
body. Consequently, mere failure to conform to them
does not have the effect of nullifying the act taken if
the requisite number of members have agreed to a
particular measure. The above principle is subject,
however, to this qualification. Where the construction
to be given to a rule affects persons other than
members of the legislative body the question
presented is necessarily judicial in character. Even its
validity is open to question in a case where private
rights are involved.[18]
In this case no rights of private individuals are
involved but only those of a member who, instead of
seeking redress in the House, chose to transfer the
dispute to this Court. We have no more power to look

into the internal proceedings of a House than members

of that House have to look over our shoulders, as long
as no violation of constitutional provisions is shown.

those which arise in the field of foreign relations. As we

have already held, under Art. VIII, 1, this Courts
function

Petitioners must realize that each of the three

departments of our government has its separate
sphere which the others may not invade without
upsetting the delicate balance on which our
constitutional order rests. Due regard for the working
of our system of government, more than mere comity,
compels reluctance on our part to enter upon an
inquiry into an alleged violation of the rules of the
House. We must accordingly decline the invitation to
exercise our power.

is merely [to] check whether or not the governmental

branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a
different view. In the absence of a showing . . . [of]
grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to
exercise its corrective power. . . . It has no power to
look into what it thinks is apparent error.[21]

Second. Petitioners, quoting former Chief Justice

Roberto Concepcions sponsorship in the Constitutional
Commission, contend that under Art. VIII, 1, nothing
involving abuse of discretion [by the other branches of
the government] amounting to lack or excess of
jurisdiction is beyond judicial review. [19] Implicit in this
statement of the former Chief Justice, however, is an
acknowledgment that the jurisdiction of this Court is
subject to the case and controversy requirement of
Art. VIII, 5 and, therefore, to the requirement of a
justiciable controversy before courts can adjudicate
constitutional questions such as those which arise in
the field of foreign relations. For while Art. VIII, 1 has
broadened the scope of judicial inquiry into areas
normally left to the political departments to decide,
such as those relating to national security, [20] it has not
altogether done away with political questions such as

If, then, the established rule is that courts cannot

declare an act of the legislature void on account
merely of noncompliance with rules of procedure made
by itself, it follows that such a case does not present a
situation in which a branch of the government has
gone beyond the constitutional limits of its jurisdiction
so as to call for the exercise of our Art. VIII, 1 power.
Third. Petitioners claim that the passage of the
law in the House was railroaded. They claim that Rep.
Arroyo was still making a query to the Chair when the
latter declared Rep. Albanos motion approved.
What happened is that, after Rep. Arroyos
interpellation of the sponsor of the committee report,
Majority Leader Rodolfo Albano moved for the approval
and ratification of the conference committee
report. The Chair called out for objections to the
motion. Then the Chair declared: There being none,

approved. At the same time the Chair was saying this,

however, Rep. Arroyo was asking, What is that . . . Mr.
Speaker? The Chair and Rep. Arroyo were talking
simultaneously.
Thus,
although
Rep.
Arroyo
subsequently objected to the Majority Leaders motion,
the approval of the conference committee report had
by then already been declared by the Chair,
symbolized by its banging of the gavel.
Petitioners argue that, in accordance with the rules
of the House, Rep. Albanos motion for the approval of
the conference committee report should have been
stated by the Chair and later the individual votes of
the Members should have been taken. They say that
the method used in this case is a legislators nightmare
because it suggests unanimity when the fact was that
one or some legislators opposed the report.
No rule of the House of Representatives has been
cited which specifically requires that in cases such as
this involving approval of a conference committee
report, the Chair must restate the motion and conduct
a viva voce or nominal voting. On the other hand, as
the Solicitor General has pointed out, the manner in
which the conference committee report on H. No. 7198
was approved was by no means a unique one. It has
basis in legislative practice. It was the way the
conference committee report on the bills which
became the Local Government Code of 1991 and the
conference committee report on the bills amending the
Tariff and Customs Code were approved.

In 1957, the practice was questioned as being

contrary to the rules of the House. The point was
answered by Majority Leader Arturo M. Tolentino and
his answer became the ruling of the Chair.Mr. Tolentino
said:
Mr. Tolentino. The fact that nobody objects means a
unanimous action of the House. Insofar as the matter
of procedure is concerned, this has been a precedent
since I came here seven years ago, and it has been the
procedure in this House that if somebody objects, then
a debate follows and after the debate, then the voting
comes in.
....
Mr. Speaker, a point of order was raised by the
gentleman from Leyte, and I wonder what his attitude
is now on his point of order. I should just like to state
that I believe that we have had a substantial
compliance with the Rules. The Rule invoked is not one
that refers to statutory or constitutional requirement,
and a substantial compliance, to my mind, is
sufficient. When the Chair announces the vote by
saying Is there any objection? and nobody objects,
then the Chair announces The bill is approved on
second reading. If there was any doubt as to the vote,
any motion to divide would have been proper. So, if
that motion is not presented, we assume that the
House approves the measure. So I believe there is
substantial compliance here, and if anybody wants a
division of the House he can always ask for it, and the

Chair can announce how many are in favor and how

many are against.[22]
Indeed, it is no impeachment of the method to say
that some other way would be better, more accurate
and
even
more
just.[23] The
advantages
or
disadvantages, the wisdom or folly of a method do not
present any matter for judicial consideration. [24] In the
words of the U.S. Circuit Court of Appeals, this Court
cannot provide a second opinion on what is the best
procedure. Notwithstanding the deference and esteem
that is properly tendered to individual congressional
actors, our deference and esteem for the institution as
a whole and for the constitutional command that the
institution be allowed to manage its own affairs
precludes us from even attempting a diagnosis of the
problem.[25]
Nor
does
the
Constitution
require
that
the yeas and the nays of the Members be taken every
time a House has to vote, except only in the following
instances: upon the last and third readings of a bill,
[26]
at the request of one-fifth of the Members present,
[27]
and in repassing a bill over the veto of the
President.[28] Indeed, considering the fact that in the
approval of the original bill the votes of the Members
by yeas and nays had already been taken, it would
have been sheer tedium to repeat the process.
Petitioners claim that they were prevented from
seeking reconsideration allegedly as a result of the
precipitate suspension and subsequent adjournment of

the session.[29] It would appear, however, that the

session was suspended to allow the parties to settle
the problem, because when it resumed at 3:40 p.m. on
that day Rep. Arroyo did not say anything
anymore. While it is true that the Majority Leader
moved for adjournment until 4 p.m. of Wednesday of
the following week, Rep. Arroyo could at least have
objected if there was anything he wanted to say. The
fact, however, is that he did not. The Journal of
November 21, 1996 of the House shows:
ADJOURNMENT OF SESSION
On motion of Mr. Albano, there being no objection, the
Chair declared the session adjourned until four oclock
in the afternoon of Wednesday, November 27, 1996.
It was 3:40 p.m. Thursday, November 21, 1996.
(emphasis added)
This Journal was approved on December 2,
1996. Again, no one objected to its approval except
Rep. Lagman.
It is thus apparent that petitioners predicament
was largely of their own making. Instead of submitting
the proper motions for the House to act upon,
petitioners insisted on the pendency of Rep. Arroyos
question as an obstacle to the passage of the
bill. But Rep. Arroyos question was not, in form or
substance, a point of order or a question of privilege
entitled to precedence.[30] And even if Rep. Arroyos

question were so, Rep. Albanos motion to adjourn

would have precedence and would have put an end to
any further consideration of the question.[31]

present for the purpose of delaying the business of the

House.[33]Rep. Arroyo waived his objection by his
continued interpellation of the sponsor for in so doing
he in effect acknowledged the presence of a quorum.

Given this fact, it is difficult to see how it can

plausibly be contended that in signing the bill which
became R.A. No. 8240, respondent Speaker of the
House be acted with grave abuse of his
discretion. Indeed, the phrase grave abuse of
discretion amounting to lack or excess of jurisdiction
has a settled meaning in the jurisprudence of
procedure. It means such capricious and whimsical
exercise of judgment by a tribunal exercising judicial or
quasi judicial power as to amount to lack of power. As
Chief Justice Concepcion himself said in explaining this
provision, the power granted to the courts by Art. VIII,
1 extends to cases where a branch of the government
or any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess
of jurisdiction.[32]

[34]

Here, the matter complained of concerns a matter

of internal procedure of the House with which the
Court should not be concerned. To repeat, the claim is
not that there was no quorum but only that Rep.
Arroyo was effectively prevented from questioning the
presence of a quorum. Rep. Arroyos earlier motion to
adjourn for lack of quorum had already been defeated,
as the roll call established the existence of a
quorum. The question of quorum cannot be raised
repeatedly especially when the quorum is obviously

At any rate it is noteworthy that of the 111

members of the House earlier found to be present on
November 21, 1996, only the five, i.e., petitioners in
this case, are questioning the manner by which the
conference committee report on H. No. 7198 was
approved on that day. No one, except Rep. Arroyo,
appears to have objected to the manner by which the
report was approved. Rep. John Henry Osmea did not
participate in the bicameral conference committee
proceedings.[35] Rep. Lagman and Rep. Zamora
objected to the report[36] but not to the manner it was
approved; while it is said that, if voting had been
conducted, Rep. Taada would have voted in favor of
the conference committee report.[37]
Fourth. Under the enrolled bill doctrine, the
signing of H. No. 7198 by the Speaker of the House
and the President of the Senate and the certification
by the secretaries of both Houses of Congress that it
was passed on November 21, 1996 are conclusive of
its due enactment. Much energy and learning is
devoted in the separate opinion of Justice Puno, joined
by Justice Davide, to disputing this doctrine. To be
sure, there is no claim either here or in the decision in
the EVAT cases [Tolentino v. Secretary of Finance] that
the enrolled bill embodies a conclusive presumption. In

one case[38] we went behind an enrolled bill and

consulted the Journal to determine whether certain
provisions of a statute had been approved by the
Senate.

This Court has refused to even look into allegations

that the enrolled bill sent to the President contained
provisions which had been surreptitiously inserted in
the conference committee:

But, where as here there is no evidence to the

contrary, this Court will respect the certification of the
presiding officers of both Houses that a bill has been
duly passed. Under this rule, this Court has refused to
determine claims that the three-fourths vote needed to
pass a proposed amendment to the Constitution had
not been obtained, because a duly authenticated bill
or resolution imports absolute verity and is binding on
the courts.[39] This Court quoted from Wigmore on
Evidence the following excerpt which embodies good,
if old-fashioned, democratic theory:

[W]here allegations that the constitutional procedures

for the passage of bills have not been observed have
no more basis than another allegation that the
Conference Committee surreptitiously inserted
provisions into a bill which it had prepared, we should
decline the invitation to go behind the enrolled copy of
the bill. To disregard the enrolled bill rule in such cases
would be to disregard the respect due the other two
departments of our government.[41]

The truth is that many have been carried away with

the righteous desire to check at any cost the
misdoings of Legislatures. They have set such store by
the Judiciary for this purpose that they have almost
made them a second and higher Legislature. But they
aim in the wrong direction. Instead of trusting a faithful
Judiciary to check an inefficient Legislature, they
should turn to improve the Legislature. The sensible
solution is not to patch and mend casual errors by
asking the Judiciary to violate legal principle and to do
impossibilities with the Constitution; but to represent
ourselves with competent, careful, and honest
legislators, the work of whose hands on the statute-roll
may come to reflect credit upon the name of popular
government.[40]

It has refused to look into charges that an

amendment was made upon the last reading of a bill in
violation of Art. VI, 26(2) of the Constitution that upon
the last reading of a bill, no amendment shall be
allowed. [42]
In other cases,[43] this Court has denied claims that
the tenor of a bill was otherwise than as certified by
the presiding officers of both Houses of Congress.
The enrolled bill doctrine, as a rule of evidence, is
well established. It is cited with approval by text
writers here and abroad.[44] The enrolled bill rule rests
on the following considerations:
. . . As the President has no authority to approve a bill
not passed by Congress, an enrolled Act in the custody

of the Secretary of State, and having the official

attestations of the Speaker of the House of
Representatives, of the President of the Senate, and of
the President of the United States, carries, on its face,
a solemn assurance by the legislative and executive
departments of the government, charged,
respectively, with the duty of enacting and executing
the laws, that it was passed by Congress. The respect
due to coequal and independent departments requires
the judicial department to act upon that assurance,
and to accept, as having passed Congress, all bills
authenticated in the manner stated; leaving the court
to determine, when the question properly arises,
whether the Act, so authenticated, is in conformity
with the Constitution.[45]
To overrule the doctrine now, as the dissent
urges, is to repudiate the massive teaching of our
cases and overthrow an established rule of evidence.
Indeed, petitioners have advanced no argument to
warrant a departure from the rule, except to say that,
with a change in the membership of the Court, the
three new members may be assumed to have an open
mind on the question of the enrolled bill rule. Actually,
not three but four (Cruz, Feliciano, Bidin, and
Quiason, JJ.) have departed from the Court since our
decision in the EVAT cases and their places have since
been taken by four new members (Francisco,
Hermosisima, Panganiban, and Torres, JJ.) Petitioners
are thus simply banking on the change in the
membership of the Court.

Moreover, as already noted, the due enactment of

the law in question is confirmed by the Journal of the
House of November 21, 1996 which shows that the
conference committee report on H. No. 7198, which
became R.A. No. 8240, was approved on that day. The
keeping of the Journal is required by the
Constitution. Art. VI, 16(4) provides:
Each House shall keep a Journal of its proceedings, and
from time to time publish the same, excepting such
parts as may, in its judgment, affect national security;
and the yeas and nays on any question shall, at the
request of one-fifth of the Members present, be
entered in the Journal.
Each House shall also keep a Record of its
proceedings.
The Journal is regarded as conclusive with respect
to matters that are required by the Constitution to be
recorded therein.[46] With respect to other matters, in
the absence of evidence to the contrary, the Journals
have also been accorded conclusive effect. Thus, in
United States v. Pons,[47] this Court spoke of the
imperatives of public policy for regarding the Journals
as public memorials of the most permanent character,
thus: They should be public, because all are required
to conform to them; they should be permanent, that
rights acquired today upon the faith of what has been
declared to be law shall not be destroyed tomorrow, or
at some remote period of time, by facts resting only in
the memory of individuals. As already noted, the bill

which became R.A. No. 8240 is shown in the

Journal. Hence its due enactment has been duly
proven.
___________________
It would be an unwarranted invasion of the
prerogative of a coequal department for this Court
either to set aside a legislative action as void because
the Court thinks the House has disregarded its own
rules of procedure, or to allow those defeated in the
political arena to seek a rematch in the judicial forum
when petitioners can find their remedy in that
department itself. The Court has not been invested
with a roving commission to inquire into complaints,
real or imagined, of legislative skullduggery. It would
be acting in excess of its power and would itself be
guilty of grave abuse of its discretion were it to do
so. The suggestion made in a case[48] may instead
appropriately be made here: petitioners can seek the
enactment of a new law or the repeal or amendment
of R.A. No. 8240.In the absence of anything to the
contrary, the Court must assume that Congress or any
House thereof acted in the good faith belief that its
conduct was permitted by its rules, and deference
rather than disrespect is due the judgment of that
body.[49]
WHEREFORE, the
petition
for certiorari and
prohibition is DISMISSED. SO ORDERED.