Statutory Construction Cases

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78780 July 23, 1987
DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,

vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF
THE PHILIPPINES, respondents.
RESOLUTION
MELENCIO-HERRERA, J.:
Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively,
of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit
and/or perpetually enjoin respondents, the Commissioner of Internal Revenue and the Financial Officer of
the Supreme Court, from making any deduction of withholding taxes from their salaries.
In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial
officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10,
Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in office, their salary shall
not be decreased," even as it is anathema to the Ideal of an independent judiciary envisioned in and by
said Constitution."
It may be pointed out that, early on, the Court had dealt with the matter administratively in response to
representations that the Court direct its Finance Officer to discontinue the withholding of taxes from
salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief
Justice's directive as follows:
RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief Justice's
previous and standing directive to the Fiscal Management and Budget Office of this Court to
continue with the deduction of the withholding taxes from the salaries of the Justices of the
Supreme Court as well as from the salaries of all other members of the judiciary.
That should have resolved the question. However, with the filing of this petition, the Court has deemed it
best to settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter, the
clear intent of the Constitutional Commission was to delete the proposed express grant of exemption from
payment of income tax to members of the Judiciary, so as to "give substance to equality among the three
branches of Government" in the words of Commissioner Rigos. In the course of the deliberations, it was
further expressly made clear, specially with regard to Commissioner Joaquin F. Bernas' accepted
amendment to the amendment of Commissioner Rigos, that the salaries of members of the Judiciary
would be subject to the general income tax applied to all taxpayers.
This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as
approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured by
the failure to include in the General Provisions a proscription against exemption of any public officer or
employee, including constitutional officers, from payment of income tax, the Court since then has
authorized the continuation of the deduction of the withholding tax from the salaries of the members of the
Supreme Court, as well as from the salaries of all other members of the Judiciary. The Court hereby
makes of record that it had then discarded the ruling in Perfecto vs. Meer and Endencia vs. David,
infra, that declared the salaries of members of the Judiciary exempt from payment of the income tax and
considered such payment as a diminution of their salaries during their continuance in office. The Court
hereby reiterates that the salaries of Justices and Judges are properly subject to a general income tax
law applicable to all income earners and that the payment of such income tax by Justices and Judges
does not fall within the constitutional protection against decrease of their salaries during their continuance
in office.
A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:
... (The members of the Supreme Court and all judges of inferior courts) shall receive such
compensation as may be fixed by law, which shall not be diminished during their continuance in
office ... 1 (Emphasis supplied).
Under the 1973 Constitution, the same provision read:
The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of judges
of inferior courts shall be fixed by law, which shall not be decreased during their continuance in
office. ... 2 (Emphasis ours).
And in respect of income tax exemption, another provision in the same 1973 Constitution specifically
stipulated:
No salary or any form of emolument of any public officer or employee, including constitutional
officers, shall be exempt from payment of income tax. 3
The provision in the 1987 Constitution, which petitioners rely on, reads:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges
of lower courts shall be fixed by law. During their continuance in office, their salary shall not
be decreased. 4(Emphasis supplied).
The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973
Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the original
concept of "non-diminution "of salaries of judicial officers.
The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such
contention.
The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:
Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and
of judges of the lower courts shall be fixed by law. During their continuance in office, their salary
shall not be diminished nor subjected to income tax. Until the National Assembly shall provide
otherwise, the Chief Justice shall receive an annual salary of _____________ and each
Associate Justice ______________ pesos. 5(Emphasis ours)
During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their
objections to the provision on tax exemption, thus:
MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not
violate the principle of the uniformity of taxation and the principle of equal protection of the law?
After all, tax is levied not on the salary but on the combined income, such that when the judge
receives a salary and it is comingled with the other income, we tax the income, not the salary.
Why do we have to give special privileges to the salary of justices?
MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease
of their salary during their term. This is an indirect way of decreasing their salary and affecting the
independence of the judges.
MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special
privilege on taxation might, in effect, be a violation of the principle of uniformity in taxation and the
equal protection clause. 6
xxx xxx xxx
MR. OPLE. x x x
Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto
Concepcion, for whom we have the highest respect, to surround the Supreme Court and the
judicial system as a whole with the whole armor of defense against the executive and legislative
invasion of their independence. But in so doing, some of the citizens outside, especially the
humble government employees, might say that in trying to erect a bastion of justice, we might end
up with the fortress of privileges, an island of extra territoriality under the Republic of the
Philippines, because a good number of powers and rights accorded to the Judiciary here may not
be enjoyed in the remotest degree by other employees of the government.
An example is the exception from income tax, which is a kind of economic immunity, which is, of
course, denied to the entire executive department and the legislative. 7
And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A. Rigos
proposed that the term "diminished" be changed to "decreased" and that the words "nor subjected to
income tax" be deleted so as to "give substance to equality among the three branches in the government.
Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original
draft and referred to the ruling of this Court in Perfecto vs. Meer 8 that "the independence of the judges is
of far greater importance than any revenue that could come from taxing their salaries." Commissioner
Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in support
of an amendment to the amendment with the request for a modification of the amendment," as follows:
FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is not
enough to drop the phrase "shall not be subjected to income tax," because if that is all that the
Gentleman will do, then he will just fall back on the decision in Perfecto vs. Meer and in Dencia
vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696[ which excludes them from
income tax, but rather I would propose that the statement will read: "During their continuance in
office, their salary shall not be diminished BUT MAY BE SUBJECT TO GENERAL INCOME
TAX."IN support of this position, I would say that the argument seems to be that the justice and
judges should not be subjected to income tax because they already gave up the income from
their practice. That is true also of Cabinet members and all other employees. And I know right
now, for instance, there are many people who have accepted employment in the government
involving a reduction of income and yet are still subject to income tax. So, they are not the only
citizens whose income is reduced by accepting service in government.
Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F. de
los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas
announced:
During the suspension, we came to an understanding with the original proponent, Commissioner
Rigos, that his amendment on page 6,. line 4 would read: "During their continuance in office, their
salary shall not be DECREASED."But this is on the understanding that there will be a provision in
the Constitution similar to Section 6 of Article XV, the General Provisions of the 1973
Constitution, which says:
No salary or any form of emolument of any public officer or employee, including

constitutional officers, shall be exempt from payment of income tax.
So, we put a period (.) after "DECREASED" on the understanding that the salary of justices is
subject to tax.
When queried about the specific Article in the General Provisions on non-exemption from tax of salaries
of public officers, Commissioner Bernas replied:
FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at
any rate, when we put a period (.) after "DECREASED," it is on the understanding that the
doctrine in Perfecto vs. Meer and Dencia vs. David will not apply anymore.
The amendment to the original draft, as discussed and understood, was finally approved without
objection.
THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a
provision under the Article on General Provisions. Could Commissioner Rosario Braid kindly take
note that the salaries of officials of the government including constitutional officers shall not be
exempt from income tax? The amendment proposed herein and accepted by the Committee now
reads as follows: "During their continuance in office, their salary shall not be DECREASED"; and
the phrase "nor subjected to income tax" is deleted.9
The debates, interpellations and opinions expressed regarding the constitutional provision in question
until it was finally approved by the Commission disclosed that the true intent of the framers of the 1987
Constitution, in adopting it, was to make the salaries of members of the Judiciary taxable. The
ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction
that the intent of the framers of the organic law and of the people adopting it should be given effect. 10 The
primary task in constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. 11it may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the
framers.12 1avvphi1
Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again
reproduced hereunder:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges
of lower courts shall be fixed by law. During their continuance in office, their salary shall not
be decreased. (Emphasis supplied).
it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of
Justices and Judges but such rate must be higher than that which they are receiving at the time of
enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a
strained construction to read into the provision an exemption from taxation in the light of the discussion in
the Constitutional Commission.
With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income tax
upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs.
Meer,13 as affirmed in Endencia vs. David 14 must be declared discarded. The framers of the fundamental
law, as the alter ego of the people, have expressed in clear and unmistakable terms the meaning and
import of Section 10, Article VIII, of the 1987 Constitution that they have adopted
Stated otherwise, we accord due respect to the intent of the people, through the discussions and
deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the cost
of maintaining the government and should share the burden of general income taxation equitably.
WHEREFORE, the instant petition for Prohibition is hereby dismissed.
Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.
EN BANC
[G.R. No. 79543. October 16, 1996]
JOSE D. FILOTEO, JR., petitioner, vs. SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
A person under investigation for the commission of an offense is constitutionally guaranteed certain
rights. One of the most cherished of these is the right to have competent and independent counsel
preferably of his choice. The 1987 Constitution, unlike its predecessors, expressly covenants that such
guarantee cannot be waived except in writing and in the presence of counsel. In the present case,
petitioner claims that such proscription against an uncounselled waiver of the right to counsel is
applicable to him retroactively, even though his custodial investigation took place in 1983 -- long before
the effectivity of the new Constitution. He also alleges that his arrest was illegal, that his extrajudicial
confession was extracted through torture, and that the prosecutions evidence was insufficient to convict
him. Finally, though not raised by petitioner, the question of what crime -- brigandage or robbery -- was
committed is likewise motu propio addressed by the Court in this Decision.
Challenged in the instant amended petition is the Decision [1] of respondent Sandiganbayan[2] in
Criminal Case No. 8496 promulgated on June 19, 1987 convicting petitioner of brigandage, and the
Resolution[3] promulgated on July 27, 1987 denying his motion for reconsideration.
The Facts
Petitioner Jose D. Filoteo, Jr. was a police investigator of the Western Police District in Metro Manila,
an old hand at dealing with suspected criminals. A recipient of various awards and commendations
attesting to his competence and performance as a police officer, he could not therefore imagine that one
day he would be sitting on the other side of the investigation table as the suspected mastermind of the
armed hijacking of a postal delivery van.
Along with his co-accused Martin Mateo, Jr. y Mijares, PC/Sgt. Bernardo Relator, Jr. y Retino,
CIC Ed Saguindel y Pabinguit, Ex-PC/Sgt. Danilo Miravalles y Marcelo and civilians Ricardo Perez,
Reynaldo Frias, Raul Mendoza, Angel Liwanag, Severino Castro and Gerardo Escalada, petitioner
Filoteo was charged in the following Information:[4]
That on or about the 3rd day of May, 1982, in the municipality of Meycauyan, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, two of whom were
armed with guns, conspiring, confederating together and helping one another, did then and there wilfully,
unlawfully and feloniously with intent of gain and by means of violence, threat and intimidation, stop the
Postal Delivery Truck of the Bureau of Postal while it was travelling along the MacArthur Highway of
said municipality, at the point of their guns, and then take, rob and carry away with them the following, to
wit:
1) Postal Delivery Truck

2) Social Security System Medicare Checks and Vouchers
3) Social Security System Pension Checks and Vouchers
4) Treasury Warrants
5) Several Mail Matters from abroad
in the total amount of P253,728.29 more or less, belonging to US Government Pensionados, SSS
Pensionados, SSS Medicare Beneficiaries and Private Individuals from Bulacan, Pampanga, Bataan,
Zambales and Olongapo City, to the damage and prejudice of the owners in the aforementioned amount.
Contrary to law.
On separate dates, accused Filoteo, Mateo, Saguindel, Relator and Miravalles, assisted by
their respective counsel, pleaded not guilty. Their co-accused Perez, Frias, Mendoza, Liwanag,
Castro and Escalada were never arrested and remained at large. Accused Mateo escaped from police
custody and was tried in absentia in accordance with Article IV, Section 19 of the 1973
Constitution. Accused Saguindel and Relator failed to appear during the trial on February 21, 1985 and
on March 31, 1986, respectively, and were thus ordered arrested but remained at large since then. Like in
the case of Mateo, proceedings against them were held in absentia.[5] Only Filoteo filed this petition,
after the respondent Court rendered its assailed Decision and Resolution.
Before trial commenced and upon the instance of the prosecution for a stipulation of facts, the
defense admitted the following:[6]
The existence of the bound record of Criminal Case No. 50737-B-82, consisting of 343 pages from the
Bulacan CFI (Exhibit A); in 1982 or thereabouts, accused Bernardo Relator was a PC Sergeant at Camp
Bagond Diwa, Bicutan, Metro Manila; as such PC Sergeant, accused Relator was issued a service
revolver, Smith & Wesson Revolver, 32 (sic), with Serial No. 11707 (Exhibit B) and holster (Exhibit B-1)
with six (6) live ammo (Exhibit B-2); in 1982 or thereabouts, accused Eddie Saguindel was a PC
Constable First Class; on May 30, 1982, accused Saguindel, together with accused Relator and Danilo
Miravalles, a former PC Sergeant, was invited for investigation in connection with the hijacking of a
delivery van by the elements of the Special Operations Group, PC, and the three availed of their right to
remain silent and to have counsel of their choice, as shown by their Joint Affidavit (Exhibit A-20); and the
existence of the sworn statement executed by accused Martin Mateo (Exhibit A-11) as well as the
Certification dated May 30, 1982, subject to the qualification that said document was made under duress.
The prosecution sought to prove its case with the testimonies of Bernardo Bautista, Rodolfo Miranda,
Capt. Rosendo Ferrer, M/Sgt. Noel Alcazar and Capt. Samuel Pagdilao, Jr. 6-a and the submission of
Exhibits A to K. In their defense, accused Filoteo and Miravalles presented their respective testimonies
plus those of Gary Gallardo and Manolo Almogera. Filoteo also submitted his Exhibits 1-14-Filoteo, but
Miravalles filed no written evidence. Thereafter, the prosecution proffered rebuttal evidence and rested
with the admission of Exhibits A-16-a, A-31 and L.
Evidence for the Prosecution
At about 6:30 in the morning of May 3, 1982, Bureau of Post mail van no. MVD 02 left San
Fernando, Pampanga to pick up and deliver mail matters to and from Manila. On board the vehicle were
Nerito Miranda, the driver, and two couriers named Bernardo Bautista and Eminiano Tagudar who
were seated beside the driver. They arrived at around 9:40 that morning at
the Airmail Distribution Center of the Manila International Airport where they were issued waybills[7] for the
sacks of mail they collected. They then proceeded to the Central Post Office where they likewise
gathered mail matters including 737 check letters[8] sent by the United States Embassy. All the mail
matters were placed inside the delivery van, and its door padlocked.
As they had to deliver mail matters to several towns of Bulacan, they took the MacArthur Highway on
the return trip to Pampanga. When they reached Kalvario, Meycauayan, Bulacan at about 4:30 in the
afternoon, an old blue Mercedes Benz sedan[9] overtook their van and cut across its path. The car
had five (5) passengers -- three seated in front and two at the back. The cars driver and the passenger
beside him were in white shirts; the third man in front and the person immediately behind him were both
clad in fatigue uniforms, while the fifth man in the back had on a long-sleeved shirt.[10]
Two of the car passengers aimed an armalite and a hand gun at driver Nerito Miranda as someone
uttered, Are you not going to stop this truck?[11] Frightened, Miranda pulled over and stopped the vans
engine. Alighting from the car, the armed group identified themselves as policemen. [12] They ordered the
postal employees to disembark from the van. As he stepped out of the van, Miranda took the ignition key
with him, but when threatened, he surrendered it to one of the car passengers.[13] The three postal
employees were then ordered to board the Benz.
As he was about to enter the car, Bautista looked back and saw one of the malefactors, who turned
out to be Reynaldo Frias, going up the van. Inside the car, the three delivery employees were ordered to
lower their heads. They sat between two of their captors at the back of the car while two others were in
front. Later, Nerito Miranda asked permission to straighten up as he was feeling dizzy for lack of air. As
he stretched, he caught a glimpse of the pimply face of the man to his left. He also recognized the driver
who had glanced back.These men turned out to be Angel Liwanag and Reynaldo Frias, respectively.[14]
As the car started moving, Bautista complained about feeling densely confined. He was allowed to
raise his head but with eyes closed. However, he sneaked a look and recognized the driver of the car as
Raul Mendoza and the fellow beside him who poked a balisong at him as Angel Liwanag. The man in
uniform on the front seat was Eddie Saguindel. Earlier, as he was about to enter the car, Bautista looked
back and recognized Frias. [15] These incidents yielded the pieces of information critical to the subsequent
identification of Mendoza, Liwanag, Saguindel and Frias in the line-up of suspects at Camp Crame later
on.
The car seemed to move around in circles. When it finally came to a stop, the captured men
discovered that they were along Kaimito Road in Kalookan City. They were made to remove their pants
and shoes and then told to run towards the shrubs with their heads lowered. Upon realizing that the
hijackers had left, they put on their pants and reported the incident to the Kalookan Police Station.
The Security and Intelligence Unit of the Bureau of Posts recovered the postal van at the
corner of Malindang and Angelo Streets, La Loma, Quezon City on May 4, 1982. Discovered
missing were several mail matters,[16] including checks and warrants, along with the vans battery,
tools and fuel.[17]
In a letter-request dated May 6, 1982 to then Col. Ramon Montao, then Postmaster General Roilo S.
Golez sought the assistance of the Special Operations Group (SOG) of the Philippine Constabulary in
the investigation of the hijacking incident.[18] Responding to the request, the SOG, which was tasked to
detect, investigate and neutralize criminal syndicates in Metro Manila and adjacent provinces, organized
two investigative teams. One group was led by Capt. Rosendo Ferrer and the other by 1st Lt. Samuel
Pagdilao. Initially, they conducted a massive intelligence build-up to monitor the drop points where the
stolen checks could be sold or negotiated.
On May 28, 1982, the SOG received a tip from a civilian informer that two persons were looking for
buyers of stolen checks. Capt. Ferrer requested the informer to arrange a meeting with them. The
meeting materialized at about 9:00 P.M. of May 29, 1982 at the Bughaw Restaurant in Cubao, Quezon
City. With cash on hand, Capt. Ferrer posed as the buyer. The informer introduced him to Rey Frias and
Rafael Alcantara. Frias in turn showed Capt. Ferrer a sample Social Security System (SSS) pension
check and told him that the bulk of the checks were in the possession of their companions in Obrero,
Tondo, Manila. After some negotiations, they agreed to proceed to Tondo. Then as they boarded a car,
Capt. Ferrer introduced himself and his companions as lawmen investigating the hijacking
incident. Shocked and distressed, Frias calmed down only when assured that his penalty would be
mitigated should he cooperate with the authorities. Frias thus volunteered to help crack the case and
lead the SOG team to Ricardo Perez and Raul Mendoza.
Capt. Ferrer instructed Lt. Pagdilao, his assistant operations officer who was in another car during
the mission, to accompany Frias to Obrero, Tondo while he escorted Alcantara to their headquarters at
Camp Crame. On the way to the headquarters, Alcantara denied participation in the hijacking although he
admitted living with Martin Mateo who allegedly was in possession of several checks. Alcantara was
turned over to the investigation section of the SOG for further questioning.
Meanwhile, Lt. Pagdilaos group was able to corner Ricardo Perez in his house in Tondo. Confronted
with the hijacking incident, Perez admitted participation therein and expressed disappointment over his
inability to dispose of the checks even after a month from the hijacking. He surrendered the checks in his
possession to Lt. Pagdilao.[19]
An hour and a half later, Capt. Ferrer received information over their two-way radio that Ricardo
Perez and Raul Mendoza were in Lt. Pagdilaos custody. Capt. Ferrer ordered that, instead of returning to
headquarters, Lt. Pagdilao and his companions should meet him in Quirino, Novaliches to apprehend
Martin Mateo. They met at the designated place and proceeded to Gulod, Novaliches arriving there at
about 10:30 P.M. of May 29, 1982.
Walking atop a ricefield dike to the house of Mateo, they noticed two men heading in their
direction. Perez identified them as Martin Mateo and Angel Liwanag. The latter threw something into the
ricefield which, when retrieved, turned out to be bundles of checks wrapped in cellophane inside a plastic
bag.[20] As the two were about to board the SOG teams's car, Mateo said, Sir, kung baga sa basketball,
talo na kami. Ibibigay ko yong para sa panalo. Marami pa akong tseke doon sa bahay ko, sir, kunin na
natin para di na natin babalikan.[21] Capt. Ferrer accompanied Mateo to his house where they retrieved
several other checks in another plastic bag.
On the way to the SOG headquarters in Camp Crame, Mateo and Liwanag admitted participation in
the postal hijacking. At a confrontation with Perez and Mendoza, all four of them pointed to
petitioner, Jose D. Filoteo, Jr., as the mastermind of the crime.
Consequently, Capt. Ferrer directed Lt. Pagdilao to accompany Mateo to the house of petitioner in
Tondo, Manila. The lawmen found petitioner at home. Upon being invited to Camp Crame to shed light on
his participation in the hijacking, petitioner was dumbfounded (parang nagulat). Pursuant to standard
operating procedure in arrests, petitioner was informed of his constitutional rights, [22] whereupon they
proceeded to Camp Crame. However, the group, including petitioner, returned to the latters place to
recover the loot. It was in the neighborhood, not in petitioners house, where the authorities located the
checks.[23]
The authorities confronted Filoteo about his participation in the hijacking, telling him that Frias,
Mendoza and Perez had earlier volunteered the information that petitioner furnished the Benz used in the
hijacking. Thereupon, Filoteo admitted involvement in the crime and pointed to three other soldiers,
namely, Eddie Saguindel, Bernardo Relator and Jack Miravalles (who turned out to be a
discharged soldier), as his confederates. At 1:45 in the afternoon of May 30, 1982, petitioner executed
a sworn statement in Tagalog before M/Sgt. Arsenio C. Carlos and Sgt. Romeo P. Espero which, quoted
in full, reads as follows:
BABALA: -- Nais kong ipaalam sa iyo, Patrolman Filoteo, na ang dahilan ng pagsisiyasat na ito ay tungkol
sa isang kasong Robbery-in-Band/Hi-Jacking na naganap noong ika-3 ng Mayo 1982 doon sa
Meycauyan, Bulacan, mga bandang alas-4:00 ng hapon, humigit-kumulang, kung saang maraming
tsekeng US, tseke ng BIR at iba pang mga personal na tseke ang nabawi mula sa iyo. Nais ko ring ibigay
sa iyo ang babala alinsunod sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng
Republika ng Pilipinas, kagaya ng mga sumusunod:
a. Na ikaw ay may karapatang tumahimik;
b. Na ikaw ay may karapatang kumuha ng isang abugadong sarili mong pili upang may magpapayo sa
iyo habang ikaw ay sinisiyasat;
c. Na ikaw ay may karapatang huwag sumagot sa mga katanungang maaring makasira sa iyo sa
dahilang anumang iyong isalaysay ay maaaring gamitin pabor or laban sa iyo sa kinauukulang
hukuman;
d. Na ikaw ay walang maibabayad sa isang abugado, ako mismo ang makipag-ugnayan sa CLAO-IBP
upang ikaw ay magkaroon ng isang abugadong walang bayad.
1. TANONG:- Ang mga bagay-bagay bang akin nang naipaliwanag sa iyo ay iyong lubos na
naiintindihan at nauunawaan?
SAGOT:- Opo.
2. T:- Handa mo bang lagdaan ang ilalim ng katanungan at sagot na ito bilang katibayan na iyo
ngang naiintindihan ang iyong mga karapatan at gayun na rin sa dahilan ng pagsisiyasat
na ito, at ikaw din ay nakahanda ngang magbigay ng isang malaya at kusang-loob na
salaysay, sumagot sa mga katanungan at sumusumpang lahat ng iyong isasalaysay ay
pawang mga katotohanan lamang?
S:- Opo, pipirma ako Ser.
(Sgd.)
JOSE D. FILOTEO
(Affiant)
MGA SAKSI:
(Sgd.) (Sgd.)
ROMEO P. ESPERO THERESA L. TOLENTINO
Ssg., PC C1C WAC (PC)"
3. T:- Maari bang sabihin mong muli ang iyong buong pangalan, edad at iba pang bagay-bagay
na maaring mapagkakikilalanan sa iyo?
S:- Jose Filoteo y Diendo, 30-anyos, may asawa, isang Patrolman ng Western Police District,
Metropolitan Police Force na kasalukuyang nakatalaga sa General Assignment Section,
Investigation Division ng naturang Distrito ng Pulisya at kasalukuyang nakatira sa No. 810
Cabesas St., Dagupan, Tondo, Manila.
4. T:- Kailan ka pa na-appoint sa service bilang isang Kabatas?
S:- Noon pong October 1978, hindi ko maalaala ang exactong petsa, noong ako ay mapasok sa
serbisyo.
5. T:- Kailan ka pa naman na-assign sa GAS, WPD, MPF?
S:- Noon lamang pong January 1982.
6. T:- Patrolman Filoteo, ikaw ba ay tubong saang bayan, lungsod or lalawigan?
S:- Pagkakaalam ko sa tatay ko ay Bulacan samantalang ang aking ina naman ay Bisaya, pero
ako ay ipinanganak na sa Maynila noon July 17, 1951.
7. T:- Ano naman ang natapos mong kurso sa pag-aaral?
S:- Undergraduate ako ng BS Criminology sa PCCr, dahil hindi ko natapos ang second
semester ng 4th year ko.
8. T:- Ano naman ang iyong specific designation sa GAS, ID, WPD-MPF?
S:- Sa Follow-Up Unit ako.
9. T:- At bilang miyembro ng follow-up unit ng GAS, ano naman ang iyong mga specific duties?
S:- Kami po ang magsasagawa ng follow-up kung may mga at large sa mga suspects namin sa
mga kasong hawak ng investigation.
10. T:- Noong ika-3 ng Mayo 1982, mga bandang alas-4:00 ng hapon humigit kumulang, saan
ka naroroon at ano ang iyong ginagawa?
S:- Nasa Plaza Lawton ho kami, eh, at inaantay na namin iyong hinayjack namin na Philippine
Mail delivery van.
11. T:- Wika moy kami, sinu-sino ang tinutukoy mong mga kasamahan?
S:- Si Carding Perez, ho; si Junior ho (Affiant pointed to Martin Mateo, Jr. who was seated in
the investigation room and asked the name and was duly answered: Martin Mateo, Jr.); si
Rey Frias; Raul Mendoza; Angelo Liwanag at ang mga taga LRP ng PC Brigade na sina
Sgt. Ed Saguindel, Sgt. Dan Miravales at isa pang Sergeant na ang alam ko lang sa kanya
ay JUN ang tawag namin. Walo (8) (corrected and initialled by affiant to read as SIYAM [9])
kaming lahat doon noon at ang mga gamit naman naming kotse noon ay ang kotse ng
kumpare kong si Rudy Miranda na isang Mercedes Benz na may plakang NMJ-659
kung saang ang driver namin noon ay si Raul Mendoza (corrected and initialled by affiant
to read as AKO) at ang mga kasama naman naming sakay ay sina Angelo Liwanag, Sgt.
Ed Saguindel at Sgt. Jun na parehong taga-LRP (affiant added and initialled this additional
fact: AT RAUL MENDOZA). Ang isang kotse namang gamit namin ay pag-aari daw ng
pinsan ni Carding Perez na kanya na rin mismong minamaneho na isang Lancer na
dirty-white ang kulay at ang mga sakay naman ni Carding Perez ay sina Junior Mateo,
Rey Frias at Sgt. Dan Miravalles ng LRP rin. Pero may kasama pa kaming contact ni
Carding Perez na taga-loob ng Post Office na sina Alias NINOY na isang dispatcher at
Alias JERRY, dahil ang mastermind dito sa trabahong ito ay si Carding PEREZ at kami
naman ng mga sundalong taga-LRP ay kanila lamang inimporta upang umeskort sa kanila
sa pag-hijack ng delivery van.
12. T:- Anong oras naman noong umalis ang delivery van ng Post Office patungong norte?
S:- Kung hindi ako nagkakamali ay nasa pagitan na noon ng alas-4:00 hanggang alas-5:00 ng
hapon.
13. T:- Isalaysay mo nga ng buong-buo kung ano ang mga naganap noong hapon na iyon?
S:- Noon pong lumakad na ang delivery van ng Central Post Office, sinundan na namin, una
ang van, sumunod ang Lancer at huli ang Mercedes Benz namin. Pagdating namin sa
Malinta, Valenzuela Metro Manila ay nagpalit kami ng puwesto sa pagsunod, van naman
ngayon, sunod ang Mercedes Benz at huli na ang Lancer. Noong makapasok na kami ng
boundary ng Meycauyan, Bulacan ay kumuha na kami ng tiyempo at noon makatiyempo
kami ay kinat namin ang delivery van. Tumigil naman ito at bumaba kaagad sina Sgt. Ed
Saguindel at Sgt. Jun ng LRP dahil sila noon ang may hawak ng kanilang Armalite Rifle
pero may service pa silang maiksing baril. Pinababa nila ang tatlong maydala ng delivery
van at pinasakay sa Mercedes Benz, habang nakatutok ang kanilang mga baril sa
kanila. Ako naman ay bumaba na sa aming kotse at sumakay ng delivery van at ako na
mismo ang nagmaneho at sinamahan naman ako nina Junior Mateo at si Rey Frias, tatlo
(3) rin kaming pumalit sa puwesto noong tatlong (3) taga-Post Office na maydala ng
delivery van. Nag-Utturn (sic) kami ngayon at ibinalik na namin sa Manila ang van. Iyong
Mercedes Benz na minamaneho pa rin ni Raul Mendoza ay dumeretso pa norte
samantalang ang Lancer naman ay nag-U-turn din at sumunod sa amin. Noong
makarating na kami sa Malinta, Valenzuela, Metro Manila ay inunahan na kami ng Lancer
at iyon na nga, parang follow the leader na dahil siya na noon ang aming guide.
14. T:- Ipagpatuloy mo ang iyong pagsasalaysay?
S:- Dumeretso kami ngayon sa may Obrero, sa bahay mismo nina Carding Perez, at noong
nakarating ng kami roon ay iniyatras ko na ang van sa kanilang garahe at doon ay ibinaba
namin lahat ang mga duffle bag, hindi ko na po alam kung ilan lahat iyon, na siyang laman
ng delivery van at pagkatapos ay umalis kaming muli ng mga kasama ko rin sa van
papuntang Quezon City kung saan namin inabandon ang delivery van. Sa Retiro ho yata
iyong lugar na iyon, kung hindi ako nagkakamali.
15. T:- Ano ang mga sumunod na nangyari?
S:- Sumakay kami ngayon ng taksi at bumalik na kami kina Carding Perez sa may bahay nila sa
Obrero, Tondo, Manila at inabutan na namin sila na nagkakarga na noong mga duffle bag
sa (sic), madilim na ho noon, sa isang kotseng mamula-mula o orange na Camaro at isa
pang Mercedes Benz na brown, dahil ang Lancer ay isinoli na raw nila sa may-ari. Dinala
nila ngayon ang mga duffle bag sa Bocaue, Bulacan, iyon kasi ang usapan namin noon
dahil sumilip lamang ako noon at kasama ko si Carding Perez, kami naman ngayon ay
pumunta sa bahay nina Rudy Miranda sa San Marcelino, Malate, Manila na sakay ng isang
Toyota Corona na brown na si Carding Perez ang nagmaneho. Pagdating namin doon sa
kina Rudy Miranda ay naroon na rin noon ang Mercedes Benz na ginamit namin, pero wala
na ang crew ng delivery van dahil ibinaba at iniwanan daw nila sa Caloocan City. Ang
naroroon na lamang noon ay sina Angelo Liwanag, si Raul Mendoza, si Sgt. Ed Saguindel
at si Sgt. Jun na parehong taga-LRP. Naiwan na noon ang Mercedes Benz namin doon
kina Rudy Miranda at iniwan na rin ang susi doon sa kamag-anak, dahil hindi nila alam ang
trabahong ito. Sumakay na iyong apat naming kasama sa Toyota Corona na sakay namin
at inihatid namin sina Sgt. Saguindel at Sgt. Jun doon sa tinitirhan nitong huling nabanggit
na sundalo doon sa malapit sa Del Pan Bridge sa may Recto Avenue sa San Nicolas yata
iyon sa Manila. Kami naman ngayong apat, sina Carding Perez, Angelo Liwanag at si Raul
Mendoza ay tumuloy na sa Bocaue, Bulacan. Dumaan kami sa North Diversion Road at
paglabas namin sa exit papuntang Bocaue, Bulacan ay hindi na kalayuan doon, hindi ko
alam ang lugar pero alam kong puntahan. Bahay daw yata ng kamag-anak ni Carding
Perez iyon pero hindi ko alam ang pangalan. Naroon na ngayon ang buong tropa, maliban
sa mga dalawang sundalong naihatid na namin sa may Manila, at may mga nadagdag
pang ibang mukha pero hindi ko ito mga kakilala. Si JACK o Sgt. Dan Miravalles ay naroon
din noon. Kumain kami, pagkatapos ay nagbukasan na ng mga duffle bag. Iyon na
nga,nakita na namin ang mga tsekeng ito, (Affiant pointed to the checks he voluntarily
surrendered) at aming inihiwalay ngayon sa mga sulat na naroon na sinunog lahat
pagkatapos doon sa bahay ni Junior Mateo sa Novaliches. Di magdamag ngayon ang
trabaho namin, kinabukasan ay kanya-kanyang uwian na, pagkatapos ay
pahinga. Kinabukasan muli, gabi, inilipat na namin doon sa bahay ni Junior Mateo ang
mga tsekeng ito (Affiant again referred to said checks). Isinakay namin noon sa isang
cargo truck na pag-aari din daw nina Carding. Iyong mga tsekeng iyan ngayon ay
nakalagay noon doon sa isang sikretong compartment sa gitna ng truck, doon ba sa may
chassis. Sikretong compartment iyon, na mahirap mahalata.
16. T: Ikaw ba naman ay mayroong dalang baril noon at kung ganoon, sabihin mo nga kung
anong uring baril iyon?
S:- Wala po akong baril, Ser.
17. T:- Paano naman napunta ang mga tsekeng ito (the checks recovered from the Affiant was
referred to) sa iyo?
S:- E, di ganoon na nga ho, habang tumatagal ay umiinit ang situwasyon sa aming grupo, dahil
iyong partehan sana namin ay puro pangako ang nangyari. Kaya napagpasiyahan namin
na hatiin na lamang iyong mga tseke upang walang onsehan sa amin. Ito ngayon ay parte
namin nina Sgt. Ed Saguindel, Sgt. Dan Miravalles Alias JACK at ni Sgt. Jun, dahil noong
una ay doon muna sa amin ito nakatago (The checks recovered from the Affiant was
referred to). Pero habang tumatagal ay umiinit at nalaman namin pati na may alarma na,
kayat inilipat namin doon sa may Raxa Bago sa may likod ng Alhambra Cigar & Cigarette
Factory sa Tondo, Manila at akin munang ipinatago sa isang kumare ko doon,
pansamantala, pero hindi alam nitong kumare ko ang laman noon dahil mahigpit kong
ipinagbilin na huwag nilang bubuksan. Doon na rin namin kinuha iyon noong isurender ko
ang mga tsekeng ito kagabi, at hanggang sa kinuha na namin ang supot na ito (the checks
placed in a plastic bag was again referred to) ay wala pa rin kamalay-malay ang kumare
ko.
18. T:- Iyong sinasabi mong mga kontak nina Carding Perez sa Central Post Office, mga
kakilala mo rin ba ang mga ito?
S:- Iyong araw na lamang na iyon ko sila nakita, dahil maghapon ko noon silang nakikita, itong
si Alias NINOY lamang ang dispatcher, dahil palabas-labas siya noon at nakikipag-usap
kina Carding Perez, Raul Mendoza at saka si Rey Frias. Makikilala ko itong si Alias NINOY
kung makita ko siyang muli.
19. T:- Sino naman ang kumontak sa iyo upang sumama sa trabahong ito?
S:- Si Junior Mateo po, ipinakilala niya ako kina Carding at sa buong tropa na namin.
20. T:- Pansamantala ay wala na muna akong itatanong pa sa iyo, mayroon ka bang nais na
idagdag, bawasin o palitan kaya sa salaysay na ito?
S:- Wala na po.
21. T:- Handa mo bang lagdaan ang iyong salaysay na ito bilang patotoo sa katotohanan nito
nang hindi ka pinilit, sinaktan or pinangakuan kaya ng anuman upang lumagda lamang?
S:- Opo.
WAKAS NG SALAYSAY: . . . . . /ac
(Sgd.)
JOSE D. FILOTEO
MGA SAKSI SA LAGDA:
(Sgd.)
SSG ROMEO P. ESPERO PC
(Sgd.)
CIC THERESA TOLENTINO WAC (PC)[24]
Petitioner executed two other documents on the same day, May 30, 1982. One was a certification
stating that he voluntarily surrendered voluminous assorted US checks and vouchers, that because of the
large number of pieces of checks, he affixed his signature upon the middle portion of the back of each
check to serve as identification in the future, prior to the completion of its proper inventory and listing
conducted by elements of SOG in his presence, and that he guided the elements of SOG to the residence
of Rodolfo C. Miranda, the owner of the sky-blue Mercedes Benz car which was surrendered to the SOG
Headquarters.[25] The other document was a sworn statement wherein petitioner attested to his
waiver of the provisions of Article 125 of the Revised Penal Code and the following facts: (a) that
he was apprised of his constitutional rights under Section 20, Article IV of the (1973) Constitution, that he
understood all his rights thereunder, and that the investigators offered him counsel from the CLAO-IBP
but he refused to avail of the privilege; (b) that he was arrested by SOG men in his house at around 11:00
p.m. of May 29, 1982 sa dahilang ako ay kasangkot sa pagnanakaw ng mga US Treasury Warrants, SSS
Pension Checks and Vouchers at SSS Medicare Checks and Vouchers mula sa delivery van ng
Philippine Mail; (c) that the SOG men confiscated from him numerous checks and a Mercedes Benz 200
colored sky-blue, and (d) that he was not hurt or maltreated nor was anything taken from him which was
not duly receipted for.[26]
As certified to by petitioner (in the above described document), he led the SOG operatives to
the house of Rodolfo Miranda on Singalong where the latter admitted that petitioner was his friend. He
denied, however, having knowledge that his car was used in the hijacking until the authorities came to his
house. According to Miranda, he was made to believe that his car would be used for surveillance
purposes because petitioners jeep was not available. The car was not returned until the evening following
that when it was borrowed.[27] After the trip to Mirandas house, petitioner informed the investigators that
some more checks could be recovered from his kumare. Said checks were retrieved and turned over to
headquarters along with the car surrendered by Miranda who later executed a sworn statement dated
May 31, 1992 at the SOG.[28]
Upon learning of the whereabouts of Miravalles, Eddie Saguindel and Bernardo Relator, the team of
Capt. Ferrer proceeded to Taguig, Metro Manila in the afternoon of May 30, 1982.They met Miravalles
along the way to his house. Informed by Capt. Ferrer that six of his companions were already under
custody and that they implicated him as one of their confederates, Miravalles reacted by saying, Sir, ang
hihina kasi ng mga loob niyan, eh.[29]
Capt. Ferrer later asked Miravalles to bring him to Eddie Saguindel. At the barracks of the Long
Range Patrol in Bicutan, Metro Manila, Saguindel voluntarily accepted the invitation to proceed to the
SOG headquarters, after Miravalles initially informed him of the facts obtained during the
investigation. Saguindel was heard saying, Hindi na kami interesado, sir, sa mga tsekeng iyan kasi isang
buwan na hindi pa nabebenta.[30] With Miravalles and Saguindel, Capt. Ferrer and his team moved on
to Binondo, Manila to look for Bernardo Relator. When they found him at home, Relator excused
himself, went upstairs, returned with a .32 caliber revolver with six bullets[31] and said, Sir, ito yong baril na
nagamit.[32] The three suspects were brought to Camp Crame for further investigation. Thereafter, Capt.
Ferrer submitted an after-operations report about their mission and executed jointly with Lt. Pagdilao on
affidavit on the same matter.[33]
Aside from petitioner, Liwanag, Mateo and Perez executed sworn statements.[34] Prior to doing so,
they waived their right to counsel. Liwanag and Mateo admitted their participation and implicated
petitioner in the crime. Perez, on the other hand, denied having driven a Lancer car in the hijacking
and stated that he was implicated in the crime only because in one drinking spree with petitioner,
Mateo and one alias Buro during that month of May, they had a heated altercation. Like petitioner,
Liwanag and Mendoza certified that they voluntarily surrendered vouchers and checks which were part of
their loot in the hijacking; they also executed waivers under Article 125 of the Revised Penal Code. For
his part, Relator executed a certification to the effect that he voluntarily surrendered his .32 caliber Smith
& Wesson service revolver used in the commission of the crime. In spite of the fact that his father-in-law
was a lawyer, petitioner did not manifest that he needed the assistance of counsel. During the taking of
his statement, petitioner was visited by Jimmy Victorino and another comrade from the General
Assignment Section of the WPD.
For their part, Relator, Saguindel and Miravalles executed a joint affidavit [35] manifesting their option
to avail of their right to remain silent until such time as they would have retained a counsel of their
choice. Frias and Mendoza executed a similar joint affidavit. [36] Severino Castro, the postal employee
implicated, also chose to remain silent as he wanted to testify in court.However, he linked to the crime a
certain Gerardo Escalada, a former clerk of the Central Post Office and son of a director of the
Bureau of Posts in Region I.[37]
On May 31, 1982, then Postmaster General Golez summoned postal employees Miranda, Bautista
and Tagudar and directed them to proceed to Camp Crame. At the office of the SOG, they were told to go
over some pictures for identification of the culprits. The three recognized and pointed to the suspects in a
line-up. Tagudar identified Saguindel and Liwanag.[38] Miranda pointed at Frias and Liwanag[39] while
Bautista identified Frias, Mendoza and Liwanag .[40] Petitioner himself, when told to identify his alleged
cohorts, pointed to Severino Castro as their contact at the post office. [41] Five of the suspects who were
not identified in the line-up were however implicated by Liwanag, Mateo and petitioner.
SOG Chief Investigator Jorge C. Mercado filed a complaint for robbery-in-band (hijacking)
before the Municipal Court of Meycauyan, Bulacan against petitioner and ten (10) others, namely,
Mateo, Saguindel, Relator, Miravalles, Perez, Frias, Mendoza, Liwanag, Castro and Escalada
(Criminal Case No. 7885).[42]
On August 8, 1983, the Information previously referred to and aforequoted was filed with the
Sandiganbayan and docketed as Criminal Case No. 8496.
On September 20, 1983, Sandiganbayan Associate Justice Romeo M. Escareal issued orders for
the arrest of the accused[43] and fixed bail at P13,000.00 each. Saguindel and Relator filed a motion to
quash the Information asserting that under the Articles of War and Section 1 of P.D. 1850, they
should be tried by a court martial.[44] The Sandiganbayan denied the motion on January 3, 1984[45] on the
ground that courts martial could no longer exercise jurisdiction over them by virtue of their separation
from military service.
Evidence for the Defense
Testifying in his own defense, petitioner alleged that as a patrolman since August 21, 1978
assigned to the Investigation Division or the Detective Bureau of the WPD to which the General
Assignment Section belonged, he was the recipient of several awards and recognitions starting with
ranking fifth in the Final Order of Merit in the basic course for police officers. [46]He also claimed to have
received a loyalty medal for meritorious service above the call of duty [47] and several
commendations[48] for the distinguished performance of his duties. On that fateful date of May 3, 1982, he
was a member of the Special Task Force Unit covering the tourist belt area.
Of the ten other accused in this case, petitioner admitted knowing only Martin Mateo whose name
appeared in the initial follow-up operation he allegedly participated in regarding a P250,000 qualified theft
case on May 16, 1980 at the Shemberg Marketing Corporation.[49] Although a suspect, Mateo was not
charged in the information subsequently filed in that case.Sometime in March 1981, Mateo visited
petitioner at the police headquarters seeking assistance in his bid to lead a new life. Considering Mateos
familiarity with underworld characters, petitioner readily made him an informer who was paid from time to
time out of the police intelligence fund. Mateo proved to be an effective informer. In fact, he allegedly
supplied vital information on the identities and whereabouts of suspects in robbery cases at the La
Elegancia Jewelry Store, at the Likha Antique and Crafts,[50] and in an alleged racket in Aranque Market in
Manila involving jewelries.
As such informer, Mateo became accustomed to borrowing petitioners owner-type jeep whenever he
was given an assignment. In one instance however, petitioner saw Mateo using his jeep with some male
companions. Because Mateo denied the occurrence of the incident, petitioner from then on refused to
lend his jeep to Mateo. Instead, Mateo was given an allowance to cover his travelling expenses.
About a month prior to May 3, 1982, petitioner met Mateo and requested the latter to give him a good
project as he was working for his transfer to the Metrocom Intelligence Security Group (MISG). On May 2,
1982, Mateo urged petitioner to lend him his jeep in order that he could follow-up a bank robbery
case. That same evening, petitioner approached his kumpare, accused Rodolfo Miranda, to borrow the
latters old Mercedes Benz since, if the jeep was used, Mateo could be identified as an informer. Petitioner
left his jeep with Miranda and went around boasting of the Mercedes Benz. [51]
Mateo took the Benz in the morning of May 3, 1982. Petitioner advised him to return the car between
the hours of two and three in the afternoon at the Lakan Beer House at the corner of Rizal Avenue and
Zurbaran Streets in Sta. Cruz, Manila where petitioner was to meet his friend Manolo Almoguera who
would be celebrating his birthday there. Petitioner met Almoguera and company at around 3:30 in the
afternoon. He waited for Mateo until shortly before 5:00 in the afternoon when he was constrained to
leave without seeing Mateo because he had to attend a mandatory regular troop formation at 5:00 P.M. at
the police headquarters. From there, petitioner proceeded to his area of responsibility in the tourist
belt. He returned to the beer house at about 6:00 in the evening hoping to find Mateo and the
automobile. A little before 8:00 oclock, someone informed him that Mateo had finally arrived. Petitioner
went out and scolded Mateo for being late; the latter apologized and said that his surveillance bore good
results. Petitioner then returned the car to Miranda, through the latters cousin.
At around 11:00 in the evening of May 29, 1982, Mateo, escorted by a group of military men, went to
petitioners house at 810 Cabezas St., Tondo, Manila. The group refused to give any reason for their visit
but arrested him. Wearing only short pants, petitioner was made to board a car where he was
handcuffed. The men asked him about the Benz and the identities of his companions in an alleged
hijacking incident. Petitioner admitted having knowledge of the exact location of the car but denied
participation in the crime. Nobody apprised him of his constitutional rights to remain silent and to be
assisted by counsel.[52]
Petitioner was then instructed to accompany Lt. Pagdilao to the residence of Miranda to get the
Benz. They were on board two cars. When petitioner noticed that they were not heading for Mirandas
place, he clutched the hand of Lt. Pagdilao, pleading for pity and thinking that he was about to be
salvaged. Lt. Pagdilao however informed him that they would be dropping by petitioners house first per
the investigators information that more checks could be recovered thereat. A warrantless search was then
allegedly conducted in petitioners house but nothing was found. Suddenly, someone from the other car
came out of a nearby house owned by Mateo and reported that they had recovered some
checks. Thereafter, they proceeded to the house of Miranda who was also invited for questioning. The
latter surrendered his Benz to the group.
At the SOG headquarters in Camp Crame, petitioner repeatedly coaxed to admit participation in the
hijacking. As he vehemently denied the accusation against him, someone blindfolded him from behind,
led him outside and loaded him in a car. He was taken to an unidentified place and made to lie flat on his
back. An object was tied to his small finger to electrocute him. While a wet handkerchief was stuffed in his
mouth, someone mounted his chest and applied the water cure (tinutubig) through his nose. Because
these ordeals were simultaneously carried out, petitioner felt unbearable pain. He sought permission to
get in touch with his father-in-law, Atty. Felix Rosacia, but his request was denied. They urged him to
cooperate otherwise something terrible would happen to him.
Meanwhile, petitioners wife reported to the WPD General Assignment Section her husbands forcible
abduction by armed men whom she mistook for CIS agents. A check with the CIS yielded negative
results. Thereafter, Lt. Reynaldo Dator went to the SOG where he was informed that petitioner was being
investigated but no details were given thereon pending clearance with superior officers. [53] Consequently,
a newspaper carried an item on the SOGs refusal to allow petitioners co-police officers to see him in his
detention cell.[54]
Among his comrades, only Jimmy Victorino, formerly of the WPD who was transferred to the SOG,
was able to visit him. Petitioner revealed to Victorino the maltreatment done him but the latter expressed
helplessness about it. In fact, Victorino advised him to just cooperate so that the SOG would not
incriminate him (para hindi ka pag-initan dito).[55] The advice came after petitioner was warned that he,
like Pat. Serrano of the WPD, would be liquidated by the SOG,[56] should he refused to cooperate. Later,
Mateo came to petitioners cell and confided that he had been similarly maltreated and forced to implicate
petitioner.
After Mateo left, a prepared statement was shown and read to petitioner. Because its contents were
false, petitioner refused to sign it. Placing his arm around petitioner, a certain Capt. Lagman told
petitioner that he thought they had an understanding already. Petitioner later discovered that Lagman was
not member of the military but an agent of the SOG, and a member of the Contreras gang. Petitioner was
therefore constrained to sign the statement because of his excruciating experience (hirap na hirap). He
however admitted having read the document before affiixing his signature thereto and initialing the
corrections therein. The waiver under Article 125 of the Revised Penal Code and the certification he
executed were allegedly also obtained by duress. Although he picked out one Severino Castro in a police
line-up, he did not even know Castro. He implicated Castro because he was threatened by a certain Boy
Zapanta.
Petitioner filed a complaint for grave coercion and maltreatment against Lt. Rosendo Ferrer and
several John Does. On August 4, 1982, Asst. City Fiscal Emelita H. Garayblas recommended its
dismissal for petitioners failure to appear despite subpoenas and to answer clarificatory questions as well
as to authenticate his statement.[57] However, petitioner swore that he never received the subpoenas.
Petitioners alibi was supported by Manolo Almoguera whose birthday on May 3, 1995 was the
reason for the celebration at the Lakan Beer House. While his baptismal certificate indicated that he was
born on May 4, 1956,[58] a joint affidavit[59] also attested that his birth date was actually May 3, 1956. Gary
Gallardo, the owner of the beer house, corroborated Almogueras testimony as to petitioners alleged
presence during the birthday celebration.
The Respondent Courts Decision
On June 18, 1987, the Sandiganbayan rendered the herein questioned 51-page Decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo, Martin Mateo, Jr.
y Mijares, Bernardo Relator, Jr. y Retino and Eddie Saguindel y Pabinguit GUILTY as co-principals
beyond reasonable doubt of the violation of Section 2 (e), in relation to Section 3 (b) of Presidential
Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 and hereby
sentences each of said accused to suffer the indeterminate penalty ranging from TWELVE (12) YEARS
and ONE (1) DAY as minimum, to THIRTEEN (13) YEARS, ONE (1) MONTH and ELEVEN (11) DAYS as
maximum, both of reclusion temporal, and to pay their proportionate share of the costs of the
action. Accused Danilo Miravalles y Marcelo is hereby acquitted, with costs de oficio, for insufficiency of
evidence.
No civil indemnity is hereby awarded due to the complete dearth of any proof as to the actual damages
suffered by the Bureau of Posts or the owners of the pilfered mail matters, and it further appearing that
the mail van which was hijacked had been recovered, as well as most of the checks and warrants which
were surrendered by some of the accused, without prejudice to the institution of the proper civil action to
recover damages should proof thereof be available.
Consequently, it is hereby ordered that Exhibits B, B-1 and B-2, which are the .32 Cal. Revolver, Smith
and Wesson, Serial No. 11707, its holster and six (6) live ammunition respectively, which were
surrendered by accused Relator, and Exhibits J, J-1 to J-5, consisting of 187, 222, 215, 197, 194 and 22
pieces, respectively, of Social Security System and Medicare checks and vouchers, be returned to the
Firearm and Explosive Unit (FEU), PC, Camp Crame, Quezon City and the Social Security System,
respectively, upon proper receipts.
Let copies of this decision be furnished the Postmaster-General, Central Post Office, Liwasang Bonifacio,
Metro Manila and the Commanding General and Chief, PC-INP, Camp Crame, Quezon City for their
information and guidance with respect to the other accused who are still at-large.
SO ORDERED.
Petitioners motion for reconsideration of said Decision was denied by the Sandiganbayan in its
challenged Resolution of July 27, 1987. Hence, the instant alternative petition for certiorari and/or review
on certiorari charging the Sandiganbayan with having gravely abused its discretion amounting to lack or
excess of jurisdiction and with reversible error in arriving at said Decision.
The Issues
The amended petition raises the following:
Assignments of Error
and / or
Excess of Jurisdiction / Grave Abuse of Discretion
xxxxxxxxx
First
The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction when it
made its determination of the alleged guilt of petitioner on the basis of mere preponderance of evidence
and not proof beyond reasonable doubt.
Second
The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in
finding that petitioners having borrowed the Mercedes Benz car utilized by the other accused in the
hijacking of the mail van idubitably established his direct participation and/or indispensable cooperation in
the said hijacking, the same being in gross disregard of basic Rules of Law.
Third
finding that the voluminous SSS Medicare and Pension Checks were confiscated from and surrendered
by petitioner and three of the other accused and in finding the testimonies and investigation reports
relative thereto, credible and unrefuted, said findings being, insofar as petitioner is concerned, absolutely
without any basis in the evidence and in fact contrary to the prosecutions only evidence that has some
measure of competency and admissibility.
Fourth
The respondent court erred and gravely abused its discretion in finding that dorsal portions of the checks
and warrants allegedly taken from petitioner were signed by him to indicate his admission of
accountability therefor and that his signatures thereon confirm the confiscation from and/or surrender by
him of said checks, said findings being absolutely without any support in the evidence.
Fifth
admitting and considering against petitioner his alleged extra judical confession, despite petitioners
uncontradicted testimony and documentary proof that he was made to give or sign the same through
torture, maltreatment, physical compulsion, threats and intimidation and without the presence and
assistance of counsel, his request for which was refused, in gross violation of Constitutional Provisions
and the prevailing jurisprudence.
Sixth
finding that petitioners participation in the hijacking of the mail van is indubitably established by the
manner by which the SOG operatives succeeded in ferreting out the members of the hijacking syndicate
one by one through patient sleuthing and in finding that they did so without resorting to extra-legal
measures and that no evidence having been adduced to show that they were actuated by improper
motives to testify falsely against the herein accused, then their testimonies should be accorded full
credence.
Seventh
finding that even setting aside the inter-locking confessional statements of Filoteo, Mateo and Liwanag, x
x x substantial and sufficient evidence exist which indubitably prove the guilt of Filoteo (Petitioner).
Eight
Insofar as petitioner is concerned, the respondent court erred and gravely abused its discretion as well as
exceeded its jurisdiction in finding that accused Filoteos (petitioners) and Mateos [alleged] unexplained
possession of the stolen checks raised the presumption that they were responsible for the robbery in
question, petitioners alleged possession not being borne out but disputed by the prosecutions own
evidence.
Ninth
finding that accused Filoteos denials and alibi cannot be entertained for being quite weak and
implausible.The truth of the matter being that they should have been sustained since petitioner was not
identified by the direct victims-eyewitnesses as among those who participated in or were present at the
hijack and none of the checks and treasury warrants were found in his possession or retrieved from him.
Tenth
finding that the participation of petitioner in the criminal conspiracy has been proven beyond reasonable
doubt by the evidence of record and that said evidence not only confirms the conspiracy between [him
and the other accused] as easily discernible from their conduct before, during and after the commission of
the offense; but also their participation therein as co-principals by direct participation and/or indispensable
cooperation.
Eleventh
The respondent Court erred and gravely abused its discretion as well as exceeded its jurisdiction in
cavalierly rejecting, through the use of pejorative words, and without stating the legal basis of such
rejection, the various vital factual points raised by petitioner, in gross violation of the express mandate of
the 1987 Constitution.
The Court believes that the above errors may be condensed into four:
(1) Are the written statements, particularly the extra-judicial confession executed by the accused
without the presence of his lawyer, admissible in evidence against him?
(2) Were said statements obtained through torture, duress, maltreatment and intimidation and
therefore illegal and inadmissible?
(3) Was petitioners warrantless arrest valid and proper?
(4) Is the evidence of the prosecution sufficient to find the petitioner guilty beyond reasonable
doubt?
The Courts Ruling
Preliminary Issue: Rule 45 or Rule 65?

Before ruling on the foregoing issues, it is necessary to dwell on the procedural aspects of the
case. Petitioner, a segurista, opted to file an (amended) alternative petition for certiorariunder Rule 65
and for review on certiorari under Rule 45 of the Rules of Court. We however hold that the instant petition
must be considered as one for review on certiorari under Rule 45.In Jariol, Jr. vs. Sandiganbayan,[60] this
Court clearly ruled:
Presidential Decree No. 1486, as amended by P.D. No. 1606, which created the Sandiganbayan,
specified that decisions and final orders of the Sandiganbayan shall be subject to review on
certiorari by this Court in accordance with Rule 45 of the Rules of Court. And Rule 45 of the Revised
Rules of Court provides, in Section 2, that only questions of law may be raised in the Petition for Review
and these must be distinctly set forth. Thus, in principle, findings of fact of the Sandiganbayan are not to
be reviewed by this Court in a petition for review on certiorari. There are, of course, certain exceptions to
this general principle. Here, reading petitioners Petition for Review and Memorandum in the most
favorable possible light, petitioner may be seen to be in effect asserting that the Sandiganbayan
misapprehended certain (f)acts in arriving at its factual conclusions.
As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly provides that
(d)ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition
for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of
Court. However, in exceptional cases, this Court has taken cognizance of questions of fact in order to
resolve legal issues, as where there was palpable error or grave misapprehension of facts by the lower
court. Criminal cases elevated by convicted public officials from the Sandiganbayan deserve the same
thorough treatment by this Court as criminal cases involving ordinary citizens simply because the
constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. In all
criminal cases, a persons life and liberty are at stake.[61]
As a petition for review under Rule 45 is the available remedy, a petition for certiorari under Rule
65 would not prosper. Basic it is that certiorari is invocable only where there is no other plain, speedy or
adequate remedy. For waffling on procedural matters, petitioner could have lost this battle through a
summary dismissal of his alternative petition. But in view of the importance of the issues raised, the Court
decided to take cognizance of the matter.
First Issue: Uncounselled Waiver
On the merits of the petition, we find that the pivotal issue here is the admissibility of petitioners
extrajudicial confession which lays out in detail his complicity in the crime. Petitioner contends that
respondent Court erred in admitting his extrajudicial confession notwithstanding uncontradicted testimony
and documentary proof that he was made to sign the same through torture, maltreatment, physical
compulsion, threats and intimidation and without the presence and assistance of counsel. He also claims
that in executing the extrajudicial confession, he was denied the right to counsel in the same way that his
waiver of the said right was likewise without the benefit of counsel. Petitioner therefore questions the
respondent Courts admission in evidence of his extrajudicial confession on the strength of
cases[62] upholding the admissibility of extrajudicial confessions notwithstanding the absence of counsel
especially where the statements are replete with details and circumstances which are indicative of
voluntariness. We shall first tackle the issue of his uncounselled waiver of his right to counsel.
The pertinent provision of Article IV, Section 20 of the 1973 Constitution reads as follows:
No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel and to be informed of such
rights. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used
against him. Any confession obtained in violation of this section shall be inadmissible in evidence.
In comparison, the relevant rights of an accused under Article III, Section 12 of the 1987 Constitution
are, inter alia, as follows:
(1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices and their
families. (underscoring supplied. Obviously, the 1973 Constitution did not contain the right against an
uncounselled waiver of the right to counsel which is provided under paragraph 1, Section 12, Article III of
the 1987 Constitution, above underscored.)
In the landmark case of Magtoto vs. Manguera,[63] the Court categorically held that the aforequoted
provisions of the 1973 Constitution (which were not included in the 1935 Charter) must be
prospectively applied. This Court said:
We hold that this specific portion of this constitutional mandate has and should be given a prospective
and not a retrospective effect. Consequently, a confession obtained from a person under investigation for
the commission of an offense, who has not been informed of his right (to silence and) to counsel, is
inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on
January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the
same had been obtained before the effectivity of the New Constitution, even if presented after January
17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused the
right to be so informed before that date.
By parity of reasoning, the specific provision of the 1987 Constitution requiring that a waiver by an
accused of his right to counsel during custodial investigation must be made with the assistance of counsel
may not be applied retroactively or in cases where the extrajudicial confession was made prior to the
effectivity of said Constitution. Accordingly, waivers of the right to counsel during custodial investigation
without the benefit of counsel during the effectivity of the 1973 Constitution should, by such
argumentation, be admissible. Although a number of cases held that extrajudicial confessions made while
the 1973 Constitution was in force and effect, should have been made with the assistance of
counsel,[64] the definitive ruling was enunciated only on April 26, 1983 when this Court, through Morales,
Jr., vs. Enrile,[65] issued the guidelines to be observed by law enforcers during custodial investigation. The
court specifically ruled that (t)he right to counsel may be waived but the waiver shall not be valid unless
made with the assistance of counsel.[66] Thereafter, in People vs. Luvendino,[67] the Court through Mr.
Justice Florentino P. Feliciano vigorously taught:
x x x. The doctrine that an uncounseled waiver of the right to counsel is not to be given legal effect was
initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated
on 20 March 1985 in People vs. Galit. x x x.
While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that
doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined
in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the
date of promulgation of Morales.
Pursuant to the above doctrine, petitioner may not claim the benefits of the Morales and Galit rulings
because he executed his extrajudicial confession and his waiver to the right to counsel on May 30, 1982,
or before April 26, 1983. The prospective application of judge-made laws was underscored in Co vs.
Court of Appeals[68] where the Court ruled thru Chief Justice Andres R. Narvasa that in accordance with
Article 8 of the Civil Code which provides that (j)udicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines, and Article 4 of the same Code which
states that (l)aws shall have no retroactive effect unless the contrary is provided, the principle of
prospectivity of statutes, original or amendatory, shall apply to judicial decisions, which, although in
themselves are not laws, are nevertheless evidence of what the law means. [69]
Petitioners contention that Article III, Section 12 of the 1987 Constitution should be given retroactive
effect for being favorable to him as an accused, cannot be sustained. While Article 22 of the Revised
Penal Code provides that (p)enal laws shall have a retroactive effect insofar as they favor the person
guilty of a felony who is not a habitual criminal, what is being construed here is a constitutional provision
specifically contained in the Bill of Rights which is obviously not a penal statute. A bill of rights is a
declaration and enumeration of the individual rights and privileges which the Constitution is designed to
protect against violations by the government, or by individuals or groups of individual. It is a charter of
liberties for the individual and a limitation upon the power of the state. [70] Penal laws, on the other hand,
strictly and properly are those imposing punishment for an offense committed against the state which the
executive of the state has the power to pardon. In other words, a penal law denotes punishment imposed
and enforced by the state for a crime or offense against its law.[71]
Hence, petitioners vigorous reliance on People vs. Sison[72] to make his extrajudicial confession
inadmissible is misplaced. In that case, the extrajudicial confession was executed on May 19, 1983,
clearly after the promulgation of Morales on April 26, 1983.
The admissibility of petitioners uncounselled waiver of the right to counsel notwithstanding, the Court
has still to determine whether such waiver was made voluntarily and intelligently. [73]The waiver must also
be categorical and definitive,[74] and must rest on clear evidence.[75]
In his affidavit of May 30, 1982 waiving the provisions of Article 125 of the Revised Penal
Code,[76] petitioner stated that:
x x x matapos akong mapagpaliwanagan ng mga imbestigador ng Special Operations Group, PC/INP

Central Anti-Organized Crime Task Force, Camp Crame, Quezon City ng aking mga karapatan alinsunod
sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng Republika ng Pilipinas ay
malaya at kusang-loob na nagsasalaysay ng mga sumusunod kahit na walang abugadong magpapayo sa
akin sa pagsasagawa nito sa dahilang alam at nauunawaan ko ang aking ginagawa at wala naman akong
isasalaysay kung hindi mga katotohanan lamang, bagamat ako ay inalok ng mga imbestigador na ikuha
ng isang abugadong walang bayad mula sa CLAO-IBP na akin namang tinanggihan:
x x x x x x x x x;
Na ako ay hindi sinaktan o minaltrato gayunding walang kinuha mula sa akin na hindi niresibohan;
x x x x x x x x x.
Sgt. Arsenio Carlos, investigating officer, testified that he apprised petitioner of his right to counsel
even in waiving the same right[77] but petitioner did not even inform him that his father-in-law was a
lawyer. Although allowed to talk for thirty minutes with Jimmy Victorino, who was his comrade at the WPD
General Assignment Section,[78] still, petitioner did not invoke his right to counsel.
It should be emphasized that petitioner could not have been ignorant of his rights as an accused. He
was a fourth year criminology student and a topnotch student in the police basic course. [79] Having been
in the police force since 1978, with stints at the investigation division or the detective bureau, he knew the
tactics used by investigators to incriminate criminal suspects. [80] in other words, he was knowledgeable on
the matter of extrajudicial confessions.
The Second Issue: Confession Extracted Through Torture?
Petitioners claim that he was tortured into signing the confession appears incredible, or at least
susceptible to serious doubts. The allegation of torture was negated by the medical report [81] showing no
evidence of physical injuries upon his person. As correctly observed by the Solicitor General, there is no
reason to maltreat him in particular when the record shows that the investigating team respected the right
of the other suspects to remain silent. When he was presented before Judge Mariano Mendieta of the
municipal court in Meycauayan, petitioner even waived his right to present evidence [82] instead of
impugning his confession on account of the torture allegedly inflicted upon him. If indeed he had been
tortured, he would have revived the case he filed against his alleged torturers upon learning of its
dismissal.
Furthermore, an examination of his signatures in the different documents on record bearing the
same discloses an evenness of lines and strokes in his penmanship which is markedly consistent in his
certification, extrajudicial confession and waiver of detention. Human experience has proven that the lines
and strokes of a persons handwriting reflect his disposition at a certain given time. In the present case, no
handwriting expert is needed to declare that petitioners signatures were written voluntarily and not under
compulsion of fear immediately after he had been subjected to maltreatment. In view of the foregoing, his
extrajudicial confession is presumed to have been voluntarily made, in the absence of conclusive
evidence showing that petitioners consent in executing the same had been vitiated. [83]
Besides, the question of whether petitioner was indeed subjected to torture or maltreatment is a
factual question addressed primarily to trial courts, the findings of which are binding on this Court whose
function, as afore-discussed, is principally to review only of questions of law. Moreover, we have pored
over the assailed Decision and we are satisfied that respondent Court performed its duty in evaluating the
evidence. More on this later.
The Third Issue: Illegal Arrest?
Petitioner questions the manner of his arrest, stating that the arresting officers invited him without a
warrant of arrest and brought him to Camp Crame where he was allegedly subjected to torture almost a
month after the commission of the crime.[84] Petitioners claim is belatedly made. He should have
questioned the validity of his arrest before he entered his plea in the trial court. On this point, this Court
explained in People vs. Lopez, Jr.:[85]
Finally, it is much too late for appellant to raise the question of his arrest without a warrant. When
accused-appellant was arrested and a case was filed against him, he pleaded not guilty upon
arraignment, participated in the trial and presented his evidence. Appellant is thus estopped from
questioning the legality of his arrest. It is well-settled that any objection involving a warrant of arrest or
procedure in the acquisition by the court of jurisdiction over the person of an accused must be made
before he enters his plea, otherwise the objection is deemed waived. Besides, this issue is being raised
for the first time by appellant. He did not move for the quashal of the information before the trial court on
this ground. Consequently, any irregularity attendant to his arrest, if any, was cured when he voluntarily
submitted himself to the jurisdiction of the trial court by entering a plea of not guilty and by participating in
the trial. Moreover, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after trial free from error.
The only move petitioner made in regard to his arrest was to file a complaint for grave coercion,
grave threat & maltreatment which was docketed as I.S. No. 82-12684 before the Fiscals Office of
Quezon City.[86] The complaint was an offshoot of his alleged maltreatment in the hands of the SOG upon
his arrest. However, as stated above, he did not lift a finger to revive it upon its dismissal.
The Fourth Issue: Sufficiency of the Prosecutions Evidence
Contrary to petitioners claim, his culpability has been proven beyond reasonable doubt. He borrowed
a car to use in the hijacking knowing fully well that his owner-type jeep would give away his identity. He
could not be identified by the postal employees in the postal van simply because after overtaking said
vehicle and forcing its driver to pull over, he gave up driving the Mercedes Benz where the postal
employees were made to ride, and commandeered the van. That the checks were not found in his own
home is of no moment. Before the arrest and upon learning that the authorities had begun to nail down
the identities of the malefactors, he had entrusted them to his kumare. It was petitioner himself who led
the team of Lt. Pagdilao back to his place after he had admitted to Sgt. Arsenio Carlos that his share of
the checks were in the possession of his kumare in the neighborhood.[87]
In view of these facts, it is beyond dispute that petitioner was a direct participant in the commission
of the crime. His alibi has been correctly considered by the Sandiganbayan to be weak and
implausible. The distance between Kalvario, Meycauayan, Bulacan and downtown Manila where
petitioner claimed to have been at the crucial time was between fifteen (15) to twenty (20) kilometers,
which, through first-class roads, could be negotiated during that time in approximately thirty (30)
minutes. It could not therefore have been physically impossible for him to be at the crime scene or its
immediate vicinity when the crime was committed.[88]
Having already ruled on the admissibility of petitioners confession, this Court holds that the full force
of the totality of the prosecutions evidence proves his guilt well beyond reasonable doubt. Weighing
heavily against the defense is the well-settled doctrine that findings of facts of the trial courts -- in this
case, the Sandiganbayan itself -- particularly in the assessment of the credibility of witnesses, is binding
upon this Court, absent any arbitrariness, abuse or palpable error.
x x x It is well-settled that this Court will not interfere with the judgment of the trial court in passing on the
credibility of the witnesses, unless there appears in the record some fact or circumstance of weight and
influence which has been overlooked or the significance of which has been misapprehended or
misinterpreted. The reason for this is that the trial court is in a better position to decide the question,
having heard the witnesses themselves and observed their deportment and manner of testifying during
the trial.[89]
The doctrine is firmly settled that the trial courts conclusion on issues of credibility is accorded with
highest respect by the appellate courts (People vs. Dominguez, 217 SCRA 170). Appellate courts will
generally respect the findings of trial courts on the credibility of witnesses since trial courts are in a better
position to weigh conflicting testimonies. They heard the witnesses themselves and observed their
deportment and manner of testifying. x x x.[90]
So overwhelming is the prosecutions evidence that respondent Court opined that even without the
inter-locking confessions of Filoteo, Mateo and Liwanag the remaining evidence would still be sufficient
for conviction.[91] Said the respondent tribunal:
However, even setting aside the inter-locking confessional statements of Filoteo, Mateo and Liwanag, we
are of the considered opinion that substantial and sufficient evidence exist which indubitably prove the
guilt of Filoteo, Relator, Mateo and Saguindel who had submitted themselves to the jurisdiction of this
Court. As above-stated, Filoteo was responsible for securing the use of the Mercedes Benz car used by
the co-conspirators in the hi-jacking. Together with Mateo, Liwanag and Mendoza, he surrendered
voluminous assorted checks which were part of the loot. Relator admitted that his service firearm was
used by him in the hi-jacking, which firearm was identified by prosecution witnesses Miranda and
Bautista. Saguindel was identified in line-ups at the SOG office as the suspect clad in fatigue uniform and
carrying an Armalite rifle by prosecution witnesses Tagudar and Bautista. All three (3) accused, namely,
Mateo, Relator and Saguindel also jumped bail during the trial and did not offer any evidence to refute the
evidence presented by the prosecution against them. Such flight to evade prosecution constitutes an
implied admission of guilt.
Moreover, accused Filoteos and Mateos unexplained possession of the stolen checks raises the
presumption that they were responsible for the robbery in question. It is a rule established by an
abundance of jurisprudence that when stolen property is found in the possession of one, not the owner,
without a satisfactory explanation of his possession, he will be presumed the thief. This rule is in
accordance with the disputable presumption that a person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and doer of the whole act. In the instant case, said accused has
not given such satisfactory explanation, much more so when their possession had been positively
established by the testimonies of prosecution witnesses Capt. Ferrer and Sgt. Carlos and by accuseds
own signatures at the back of said checks.
Furthermore, accused Filoteos denials and alibi cannot be entertained for being quite weak and
implausible. His claim that he merely borrowed the Mercedes Benz car from Rodolfo Miranda to help out
his co-accused Mateo, who had been utilized by the police as an informer and was following up tips in
certain unsolved cases, appears to be incredible and fantastic. He also claimed that he could not have
participated in the hi-jack because after giving the car to Mateo in the morning of May 2, 1982, he waited
at the corner of Zurbaran St. and Avenida Rizal between 2-3:00 oclock p.m. of the same day and then
went to the WPD headquarters to attend the police formation at around 5:00 oclock p.m. when Mateo
failed to show up. Thereafter, he tried to show through his witnesses Gary Gallardo and Manolo Almogera
that he was with them between 3:00 oclock to 4:45 oclock p.m., then from 6:00 oclock to 8:30 oclock p.m.
and, finally, from 10:45 oclock p.m. to 11:00 oclock of the same date. It was through said witnesses that
he tried to establish his whereabouts between 4:30 oclock to 7:30 oclock p.m. of May 2, 1982, the period
from the time the mail van was hi-jacked up to when postal employees Bautista, Miranda and Tagudar
were brought to Caloocan City and freed by their captors. Such alibi, however, fails to show that it was
physically impossible for him to be present at the scene of the hi-jacking. We take judicial notice that the
distance between the crime scene and downtown Manila is some 15-20 kilometers and negotiable over
first-class roads in some thirty (30) minutes.
We are likewise convinced that there is sufficient evidence of conspiracy as convincing as the
evidence of the participation of each of the accused. As ratiocinated in the assailed Decision:[92]
The participation of accused Filoteo, Mateo, Relator and Saguindel in the criminal conspiracy have (sic)
been proved beyond reasonable doubt by the evidence on record and which evidence not only confirms
the existence of the conspiracy between them as easily discernible from their conduct before, during and
after the commission of the offense, but also their participation therein as co-principals by direct
participation and/or indispensable cooperation. Their concerted efforts were performed with closeness
and coordination indicating their common purpose. Hence, there being collective criminal responsibility,
the act of one is the act of all, and each of the participants are responsible for what the others did in all
the stages of execution of the offense.
Final Question: Brigandage or Robbery?
The Court believes that, though not raised as an issue and though not argued by the parties in their
pleadings, the question of which law was violated by the accused should be discussed and passed
upon. In fact, petitioner should have brought up such question as it may benefit him with a reduced
penalty.
The respondent Court convicted the accused of brigandage punishable under Presidential Decree
No. 532.[93]
Justifying the above disposition, the assailed Decision ratiocinates:
Accused herein are charged with the violation of Presidential Decree No. 532, otherwise known as the
Anti-Piracy and Anti-Highway Robbery Law of 1974. Under said decree, with respect to the highway
robbery aspect, the offense is committed on a Philippine Highway which under Section 2 (c) thereof has
been defined as any road, street, passage, highway and bridges or any part thereof, or railway or railroad
within the Philippines, used by persons or vehicles, or locomotives or trains for the movement or
circulation of persons or transportation of goods, articles or property or both, while under Section 2 (e)
thereof Highway Robbery/Brigandage has been defined as the the seizure of any person for ransom,
extortion or other unlawful purposes or the taking away of property of another by means of violence
against or intimidation of persons nor force upon things or other unlawful means, committed by any
person on any Philippine Highway. (Underscoring supplied)
The offense described in the information and established by the evidence presented by the prosecution
properly falls within the ambit of the aforesaid special law. Therein, it was conclusively proven that a
postal van containing mail matters, including checks and warrants, was hi-jacked along the national
highway in Bulacan by the accused, with the attendant use of force, violence and intimidation against the
three (3) postal employees who were occupants thereof, resulting in the unlawful taking and asportation
of the entire van and its contents consisting of mail matters. Also the evidence further showed that the
crime was committed by the accused who were PC soldiers, policeman (sic) and private individuals in
conspiracy with their co-accused Castro and Escalada who were postal employees and who participated
in the planning of the crime. Accordingly, all the essential requisites to constitute a consummated offense
under the law in point are present. (Underscoring in the original text.)
Obviously, the Court a quo labored under the belief that because the taking or robbery was
perpetrated on a national highway (McArthur Highway), ergo, Presidential Decree No. 532, otherwise
known as the Anti-Piracy and Anti-Highway Robbery Law of 1974, must have been the statute
violated. Such reasoning has already been debunked by this Court in the case of People vs. Isabelo
Puno,[94] where it was ruled in unmistakable language that it takes more than the situs of the robbery to
bring it within the ambit of PD 532. Said the Court through Mr. Justice Florenz D. Regalado:
The following salient distinctions between brigandage and robbery are succinctly explained in a treatise
on the subject and are of continuing validity:
The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the
offense consists in the formation of a band by more than three armed persons for the purpose indicated in
art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to
show, in a prosecution under it, that a member or members of the band actually committed robbery or
kidnapping or any other purpose attainable by violent means. The crime is proven when the organization
and purpose of the band are shown to be such as are contemplated by art. 306. On the other hand, if
robbery is committed by a band, whose members were not primarily organized for the purpose of
committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply
because robbery was committed by a band of more than three armed persons, it would not follow that it
was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band sala a
los campos para dedicarse a robar. (Italics ours.)
In fine, the purpose of brigandage, is inter alia, indiscriminate highway robbery. If the purpose is only a
particular robbery, the crime is only robbery, or robbery in band if there are at least four armed
participants. The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the
objectives announced therein, could not have been unaware of that distinction and is presumed to have
adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on
contemporaneous construction, since it is one drawn from the time when and the circumstances under
which the decree to be construed originated. Contemporaneous exposition or construction is the best and
strongest in the law.
Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as
defined therein, and not acts of robbery committed against only a predetermined or particular victim, is
evident from the preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless are still committing acts of
depredation upon the persons and properties of innocent and defenseless inhabitants who travel from
one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the
economic and social progress of the people:
WHEREAS, such acts of depredations constitute x x x highway robbery/brigandage which are among the
highest forms of lawlessness condemned by the penal statutes of all countries:
WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of
depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles
to the economic, social, educational and community progress of the people; (Emphasis supplied.)
Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the
accused as their specific victim could be considered as committed on the innocent and defenseless
inhabitants who travel from one place to another, and which single act of depredation would be capable of
stunting the economic and social progress of the people as to be considered among the highest forms of
lawlessness condemned by the penal statutes of all countries, and would accordingly constitute an
obstacle to the economic, social, educational and community progress of the people, such that said
isolated act would constitute the highway robbery or brigandage contemplated and punished is said
decree. This would be an exaggeration bordering on the ridiculous.
From the above, it is clear that a finding of brigandage or highway robbery involves not just
the locus of the crime or the fact that more than three (3) persons perpetrated it. It is essential to prove
that the outlaws were purposely organized not just for one act of robbery but for several indiscriminate
commissions thereof. In the present case, there had been no evidence presented that the accused were
a band of outlaws organized for the purpose of depredation upon the persons and properties of innocent
and defenseless inhabitants who travel from one place to another. What was duly proven in the present
case is one isolated hijacking of a postal van. There was also no evidence of any previous attempts at
similar robberies by the accused to show the indiscriminate commission thereof. [95]
Upon the other hand, the Information did not specifically mention P.D. 532. [96] The facts alleged
therein and proven by the evidence constitute the offense of robbery defined in Art. 293 in relation to Art.
295 and punished by Art. 294, par. 5, all of the Revised Penal Code.[97] From the facts, it was duly proven
that:
personal property (treasury warrants, checks, mail, van, tools, etc.)
belonging to another were
unlawfully taken by the accused
with intent to gain (animo lucrandi)
with intimidation against three persons (Art. 293)
in an uninhabited place, or
by an band, or
by attacking a moving motor vehicle
on a highway; and
the intimidation was made with the use of firearms (Art. 295)
Hence, the offender shall be punished by the maximum period of the penalty provided under
paragraph 5 of Art. 294, which is, prision correctional in its maximum period to prision mayor in its
medium period.
Effectively, the penalty imposed by the Court a quo should be lightened. However, such lighter
penalty shall benefit only herein petitioner and not his co-accused who did not contest or appeal the
Sandiganbayans Decision.
WHEREFORE, the petition is DENIED, but the first paragraph of the dispositive portion of the
assailed Decision is partially MODIFIED to read as follows:
WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo GUILTY beyond
reasonable doubt as co-principal in the crime of robbery as defined in Arts. 293 and 295 and penalized
under Art. 294, paragraph 5, of the Revised Penal Code Code IMPOSING on him an indeterminate
sentence of four (4) years and two (2) months of prision correctional, as minimum, to ten (10) years
of prision mayor as maximum, and to pay his proportionate share of the costs of the action.
All other parts of the disposition are hereby AFFIRMED.

SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Francisco, and Torres, Jr., JJ., concur.
Mendoza, J., No part, being on official business abroad when this case was deliberated.
Hermosisima, Jr., J., No part, signatory to the appealed judgment.
SUPREME COURT
Manila
EN BANC
G.R. No. L-21064 June 30, 1970
J. M. TUASON & CO., INC., petitioner-appellee,
vs.
THE LAND TENURE ADMINISTRATION, THE SOLICITOR GENERAL and THE AUDITOR
GENERAL, respondents-appellants.
Araneta, Mendoza and Papa for petitioner-appellee.
Besa, Aguilar and Gancia, Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General
Frine' C. Zaballero, Solicitor Rosalio A. de Leon and Special Attorney Magno B. Pablo for respondents-
appellants.
RESOLUTION
FERNANDO, J.:
From our decision of February 18, 1970, reversing the judgment of the lower court holding that Republic
Act No. 2616 as amended is unconstitutional, printed motion for reconsideration was filed by petitioner-
appellee on March 31, 1970 reiterating its arguments as to its alleged invalidity for being violative of the
due process and equal protection guarantees. On May 27, 1970, a detailed opposition to such a motion
for reconsideration was filed by the Solicitor General, the Honorable Felix Q. Antonio, on behalf of
respondents-appellants. Then came a rejoinder of petitioner, on June 15, 1970, to the pleading of the
Solicitor General. The motion for reconsideration is thus ripe for determination. With due recognition of
the vigor and earnestness with which petitioner argued its motion, based on what it considered to be our
applicable decisions, the Court cannot grant the same. Our decision stands.
1. It was a unanimous Court that could not locate a constitutional infirmity vitiating Republic Act No. 2616
directing the expropriation of the Tatalon Estate in Quezon City. There are points of differences in the
three written opinions, but there is none as to the challenged legislative act being invulnerable on the
grounds therein asserted to justify its sought for nullification. While, to repeat, petitioner apparently
remains unconvinced, standing fast on the contentions to which it would seek to impart greater
plausibility, still the intent of the framers of the Constitutional Convention, as shown not only by the
specific provisions allowing the expropriation of landed estates, but also by the social justice provision as
reflected in our decisions, save possibly Republic vs. Baylosis,1 preclude a favorable action on the
impassioned plea of petitioner for a reconsideration of our decision. At any rate, petitioner-appellee can
take comfort in the separate opinion of Justice Teehankee, with which four other members of the Court,
including the Chief Justice, are in agreement, to enable it to raise questions, the answers to which, if its
view would be sustained, would certainly afford sufficient protection to what it believes to be an
unconstitutional infringement on its property rights.
2. It may not be amiss to make more explicit and categorical what was held in our opinion that Section 4
of Republic Act No. 2616 prohibiting a suit for ejectment proceedings or the continuance of one already
commenced even in the absence of expropriation proceedings, is unconstitutional, as held in Cuatico v.
Court of Appeals.2 Greater emphasis likewise should be laid on our holding that while an inaccuracy
apparent on the face of the challenged statute as to the ownership of the Tatalon Estate does not suffice
to call for its invalidity, still to erase even a fanciful doubt on the matter, the statement therein found in
Section 1 of the Act that in addition to petitioner-appellee, Gregorio Araneta & Co., Inc. and Florencio
Deudor, et al. are included, cannot be understood as conferring on any juridical or natural persons, clearly
not entitled thereto, dominical rights over such property in question.
3. In the aforesaid decision of Cuatico v. Court of Appeals, reference was made to the amendatory Act,
Republic Act No. 3453 to Section 4 as it originally was worded in Republic Act No. 2616, the amendment
consisting of the following: "Upon approval of this amendatory Act, no ejectment proceedings shall be
instituted or prosecuted against the present occupants of any lot in said Tatalon Estate, and no ejectment
proceedings already commenced shall be continued, and such lot or any portion thereof shall not be sold
by the owners of said estate to any person other than the present occupant without the consent of the
latter given in a public instrument."3 The question before the, Court, according, to the opinion penned by
Justice Bautista Angelo, was: "Are the provisions embodied in the amendatory Act which prescribe that
upon approval of said Act no ejectment proceedings shall be instituted or prosecuted against any
occupant of any lot in the Tatalon Estate, or that no ejectment proceedings already commenced shall be
continued, constitutional and valid such that it may be said that the Court of Appeals abused its discretion
in denying the petitions for suspension filed by petitioners.?"4
Then came this portion of the opinion: "This is not the first time that this Court has been called upon to
pass upon the validity of a provision which places a landowner in the situation of losing his dominical
rights over the property without due process or compensation. We refer to the provisions of Republic Act
2616 before they were amended by Republic Act No. 3453. Note that, as originally provided, Republic Act
No. 2616 prohibited the institution of an ejectment proceeding against any occupant of any lot in the
Tatalon Estate or the continuance of one that has already been commenced after the expropriation
proceedings shall have been initiated and during the pendency of the same. On the surface this provision
would appear to be valid if the same is carried out in the light of the provisions of our Constitution relative
to cases of eminent domain, for in that case the rights of the owner of the property to be expropriated are
protected. But then an attempt came to circumvent that provision in an effort to safeguard or protect the
interest of some occupants of the land, which reached this Court for adjudication, as when some
occupants attempted to block their ejectment upon the plea that the government would soon start
expropriation proceedings even if no sufficient funds were appropriated to provide compensation to the
owner and even if it was not in a position to take possession of the estate, and so the owner contested
the attempt invoking its rights under the Constitution. And this Court upheld the contention of the owner
by declaring the attempt unconstitutional."5
The conclusion that inevitably was called for is worded thus: "It is, therefore, imperative that we declare,
as we now do, that Section 4 of Republic Act No. 3453 which prohibits the filing of an ejectment
proceeding, or the continuance of one that has already been commenced, even in the absence of
expropriation proceedings offends our Constitution and, hence, is unenforceable."6
What we said then, we reaffirm now, as was indeed evident in our decision sought to be reconsidered but
perhaps not given the importance which, in the opinion of petitioner-appellee, it was entitled to. Nothing in
our decision can be taken to detract in any wise from the binding force and effect of the Cuatico ruling
which declared unconstitutional Section 4 of Republic Act No. 3453.
4. We likewise ruled that the mistake imputed to Congress in apparently recognizing the rights of
ownership in entities or individuals not possessed of the same could not invalidate the challenged statute.
In the same way, it cannot be made the basis for non-existent rights of ownership to the property in
question. It is in that sense that, as noted in our decision, no fear need be entertained that thereby the
petitioner-appellee would be adversely affected. The government certainly would not pay to a party other
than the owner the claim for just compensation which, under the Constitution, it is required to meet.
Neither, then can any party who is not in that situation have any standing whatsoever. This much is
beyond dispute. To repeat, the apprehension entertained by petitioner-appellee, perhaps indicative of it,
excess of caution, is without legal foundation.
WHEREFORE, the motion for the reconsideration of our decision of February 18, 1970, filed by petitioner-
appellee, is denied.

SUPREME COURT
Manila
EN BANC
G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as
Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as
Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health;
REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National
Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
DECISION
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved
jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by
President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order
are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other appointive officials of the Executive Department may, in
addition to his primary position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not
apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the
Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the
Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must
relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall
any official hold more than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition to
their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article
VII of the 1987 Constitution, 2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in
any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the
conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the
Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex “C”
in G.R. No. 83815 3 and as Annex “B” in G.R. No. 83896 4 from holding any other office or employment
during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No.
284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public
respondents therein to cease and desist from holding, in addition to their primary positions, dual or
multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries,
allowances, per diems and other forms of privileges and the like appurtenant to their questioned
positions, and compelling public respondents to return, reimburse or refund any and all amounts or
benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted
“absolute and self-executing” provision of the 1987 Constitution, then Secretary of Justice Sedfrey
Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July
23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of the
Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8,
paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No.
284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order
No. 284 as they allegedly “lumped together” Section 13, Article VII and the general provision in another
article, Section 7, par. (2), Article I-XB. This “strained linkage” between the two provisions, each
addressed to a distinct and separate group of public officers –– one, the President and her official family,
and the other, public servants in general –– allegedly “abolished the clearly separate, higher, exclusive,
and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the
Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example.” 7 Article IX-B, Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
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 government-owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further
elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of
1988, 10 being the first official construction and interpretation by the Secretary of Justice of Section 13,
Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of
appointments or designations of an appointive executive official to positions other than his primary
position, is “reasonably valid and constitutionally firm,” and that Executive Order No. 284, promulgated
pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation
imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the public official, but only to the holding
of multiple positions which are not related to or necessarily included in the position of the public official
concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal
submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution.
According to petitioners, by virtue of the phrase “unless otherwise provided in this Constitution,” the only
exceptions against holding any other office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under
Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil
Service Commission applies to officers and employees of the Civil Service in general and that said
exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the
President, Vice-President, Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet
and their deputies or assistants from holding dual or multiple positions in the Government admits of
certain exceptions. The disagreement between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that because of the phrase “unless otherwise
provided in this Constitution” used in Section 13 of Article VII, the exception must be expressly provided
in the Constitution, as in the case of the Vice-President being allowed to become a Member of the
Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated
an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on
the other hand, maintain that the phrase “unless otherwise provided in the Constitution” in Section 13,
Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned
therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution
insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions
made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is
quoted anew, thus: “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 government-owned or controlled corporation or their subsidiaries.”
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the condition
and circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the
governing bodies or boards of various government agencies and instrumentalities, including government-
owned and controlled corporations, became prevalent during the time legislative powers in this country
were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was
a proliferation of newly-created agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these
instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact,
the holding of multiple offices in government was strongly denounced on the floor of the Batasang
Pambansa. 12 This condemnation came in reaction to the published report of the Commission on Audit,
entitled “1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-
Governing Boards and Commissions” which carried as its Figure No. 4 a “Roaster of Membership in
Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983.”
Particularly odious and revolting to the people’s sense of propriety and morality in government service
were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-
nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three
(23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and
Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of
eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the provisions under
consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of
multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz
during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during
the campaign for its ratification was the assurance given by its proponents that the scandalous practice of
Cabinet members holding multiple positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of
the Cabinet, their deputies and assistants from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of
the Constitution on the disqualifications of certain public officials or employees from holding other offices
or employment. Under Section 13, Article VI, “(N)o Senator or Member of the House of Representatives
may hold any other office or employment in the Government . . .”. Under Section 5(4), Article XVI, “(N)o
member of the armed forces in the active service shall, at any time, be appointed in any capacity to a
civilian position in the Government, including government-owned or controlled corporations or any of their
subsidiaries.” Even Section 7 (2), Article IX-B, relied upon by respondents provides “(U)nless 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.”
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states
that “(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any other office or employment during their
tenure.” In the latter provision, the disqualification is absolute, not being qualified by the phrase “in the
Government.” The prohibition imposed on the President and his official family is therefore all-embracing
and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: “They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries.” These sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed forces, are
proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself
and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family
was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, “We actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints
on them are called for because there is more possibility of abuse in their case.” 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment
in the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13,
Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of
the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase “unless otherwise provided in this Constitution” in Section 13,
Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987
Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory
and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government during their tenure. Respondents’
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article
IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand,
and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on
the other, may hold any other office or position in the government during their tenure.
Moreover, respondents’ reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13
of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but
who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible “for
appointment or designation in any capacity to any public office or position during his tenure.” Surely, to
say that the phrase “unless otherwise provided in this Constitution” found in Section 13, Article VII has
reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the Cabinet, 15 and to act as
President without relinquishing the Vice-Presidency where the President shall not have been chosen or
fails to qualify. 16 Such absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2)
of Article I-XB be construed vis-à-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be
separated from all the others, to be considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the
instrument. 17 Sections bearing on a particular subject should be considered and interpreted together as
to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding
multiple offices or employment in the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that
it must be understood as intended to be a positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase
“unless otherwise provided in this Constitution” must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by law and
as required 22 by the primary functions of said officials’ office. The reason is that these posts do no
comprise “any other office” within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise
would lead to absurd consequences, among which are: The President of the Philippines cannot chair the
National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can
the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have no reason to exist for lack
of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower
and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which
are attached to his department for policy coordination and guidance. Neither can his Undersecretaries
and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower
ranking employees in providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted as
demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible,
should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the primary
functions of the concerned official’s office. The term ex-officio means “from office; by virtue of office.” It
refers to an “authority derived from official character merely, not expressly conferred upon the individual
character, but rather annexed to the official position.” Ex-officio likewise denotes an “act done in an official
character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office.” 27 An ex-officio member of a board is one who is a member by virtue of his title to
a certain office, and without further warrant or appointment. 28 To illustrate, by express provision of law,
the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and
Apparel Control and Inspection Board, 31 thus: “An examination of section 2 of the questioned statute
(R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the representative from the private
sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices
mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of
Customs, cannot, under the act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new appointments are necessary. This is as it
should be, because the representatives so designated merely perform duties in the Board in addition to
those already performed under their original appointments.” 32
The term “primary” used to describe “functions” refers to the order of importance and thus means chief or
principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional
duties must not only be closely related to, but must be required by the official’s primary functions.
Examples of designations to positions by virtue of one’s primary functions are the Secretaries of Finance
and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics
Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions
would fall under the purview of “any other office” prohibited by the Constitution. An example would be the
Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which confer on the cabinet official management
functions and/or monetary compensation, such as but not limited to chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill in their respective executive offices
is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency,
policy direction, continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national interest and
general welfare and delivering basic services to the people. It is consistent with the power vested on the
President and his alter egos, the Cabinet members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties
and functions being assigned to the President and his official family to sit in the governing bodies or
boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means for control
and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions
must be required by the primary functions of the official concerned, who is to perform the same in an ex-
officio capacity as provided by law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that
the official concerned has no right to receive additional compensation for his services in the said position.
The reason is that these services are already paid for and covered by the compensation attached to his
principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the
primary function of his principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by
the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian
Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions,
the exception “unless required by the functions of his position,” 36 express reference to certain high-
ranking appointive public officials like members of the Cabinet were made. 37 Responding to a query of
Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not
required by current law, membership of certain high-ranking executive officials in other offices and
corporations is necessary by reason of said officials’ primary functions. The example given by
Commissioner Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that
additional functions and duties flowing from the primary functions of the official may be imposed upon him
without offending the constitutional prohibition under consideration, it cannot, however, be taken as
authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary session of September 27, 1986. Under
consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on
General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on
third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more
specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41It
was only after the draft Constitution had undergone reformatting and “styling” by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded
“Unless otherwise allowed by law or by the primary functions of his position. . . .”
What was clearly being discussed then were general principles which would serve as constitutional
guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue
and approved on that occasion was the adoption of the qualified and delimited phrase “primary functions”
as the basis of an exception to the general rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it
could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of
the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to the President and his official family is by
reason of the legal principles governing additional functions and duties of public officials rather than by
virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions
and duties “required,” as opposed to “allowed,” by the primary functions may be considered as not
constituting “any other office.”
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail 42 as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention “are of value as showing
the views of the individual members, and as indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens
whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe
the constitution from what appears upon its face.” 43 The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers’ understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit
the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during
their tenure multiple offices or employment in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts held without additional compensation in
an ex-officio capacity as provided by law and as required by the primary functions of their office, the
citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on
the general rule laid down for all appointive officials should be considered as mere personal opinions
which cannot override the constitution’s manifest intent and the people’ understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of
the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly
restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may
hold in addition to their primary position to not more than two (2) positions in the government and
government corporations, Executive Order No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the Government,
considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without additional compensation as provided by law
and as required by the primary functions of his office do not fall under the definition of “any other office”
within the contemplation of the constitutional prohibition. With respect to other offices or employment held
by virtue of legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head’s ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices 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. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo
R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other
offices or employment, as herein defined, in the government, including government-owned or controlled
corporations and their subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as
such entitled to emoluments for actual services rendered. 46 It has been held that “in cases where there is
no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations attached to the office. This doctrine
is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by
the services of an officer de facto and then be freed from all liability to pay any one for such
services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of
actual services rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order
No. 284 is hereby declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Sarmiento and Griño-Aquino, JJ., took no part.
EN BANC
G.R. No. 127882 January 27, 2004
LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F'LONG MIGUEL M.

LUMAYONG, WIGBERTO E. TAÑADA, PONCIANO BENNAGEN, JAIME TADEO, RENATO R.
CONSTANTINO, JR., F'LONG AGUSTIN M. DABIE, ROBERTO P. AMLOY, RAQIM L. DABIE,
SIMEON H. DOLOJO, IMELDA M. GANDON, LENY B. GUSANAN, MARCELO L. GUSANAN,
QUINTOL A. LABUAYAN, LOMINGGES D. LAWAY, BENITA P. TACUAYAN, minors JOLY L.
BUGOY, represented by his father UNDERO D. BUGOY, ROGER M. DADING, represented by his
father ANTONIO L. DADING, ROMY M. LAGARO, represented by his father TOTING A. LAGARO,
MIKENY JONG B. LUMAYONG, represented by his father MIGUEL M. LUMAYONG, RENE T.
MIGUEL, represented by his mother EDITHA T. MIGUEL, ALDEMAR L. SAL, represented by his
father DANNY M. SAL, DAISY RECARSE, represented by her mother LYDIA S. SANTOS, EDWARD
M. EMUY, ALAN P. MAMPARAIR, MARIO L. MANGCAL, ALDEN S. TUSAN, AMPARO S. YAP,
VIRGILIO CULAR, MARVIC M.V.F. LEONEN, JULIA REGINA CULAR, GIAN CARLO CULAR,
VIRGILIO CULAR, JR., represented by their father VIRGILIO CULAR, PAUL ANTONIO P.
VILLAMOR, represented by his parents JOSE VILLAMOR and ELIZABETH PUA-VILLAMOR, ANA
GININA R. TALJA, represented by her father MARIO JOSE B. TALJA, SHARMAINE R. CUNANAN,
represented by her father ALFREDO M. CUNANAN, ANTONIO JOSE A. VITUG III, represented by
his mother ANNALIZA A. VITUG, LEAN D. NARVADEZ, represented by his father MANUEL E.
NARVADEZ, JR., ROSERIO MARALAG LINGATING, represented by her father RIO OLIMPIO A.
LINGATING, MARIO JOSE B. TALJA, DAVID E. DE VERA, MARIA MILAGROS L. SAN JOSE, SR.,
SUSAN O. BOLANIO, OND, LOLITA G. DEMONTEVERDE, BENJIE L. NEQUINTO, 1 ROSE LILIA S.
ROMANO, ROBERTO S. VERZOLA, EDUARDO AURELIO C. REYES, LEAN LOUEL A. PERIA,
represented by his father ELPIDIO V. PERIA,2 GREEN FORUM PHILIPPINES, GREEN FORUM
WESTERN VISAYAS, (GF-WV), ENVIRONMETAL LEGAL ASSISTANCE CENTER (ELAC),
PHILIPPINE KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT REPORMANG
PANSAKAHAN (KAISAHAN),3 KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT
REPORMANG PANSAKAHAN (KAISAHAN), PARTNERSHIP FOR AGRARIAN REFORM and RURAL
DEVELOPMENT SERVICES, INC. (PARRDS), PHILIPPINE PART`NERSHIP FOR THE
DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA), WOMEN'S
LEGAL BUREAU (WLB), CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI),
UPLAND DEVELOPMENT INSTITUTE (UDI), KINAIYAHAN FOUNDATION, INC., SENTRO NG
ALTERNATIBONG LINGAP PANLIGAL (SALIGAN), LEGAL RIGHTS AND NATURAL RESOURCES
CENTER, INC. (LRC), petitioners,
vs.
VICTOR O. RAMOS, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), HORACIO RAMOS, DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGB-
DENR), RUBEN TORRES, EXECUTIVE SECRETARY, and WMC (PHILIPPINES), INC.4 respondents.
DECISION
CARPIO-MORALES, J.:
The present petition for mandamus and prohibition assails the constitutionality of Republic Act No.
7942,5 otherwise known as the PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules
and Regulations issued pursuant thereto, Department of Environment and Natural Resources (DENR)
Administrative Order 96-40, and of the Financial and Technical Assistance Agreement (FTAA) entered
into on March 30, 1995 by the Republic of the Philippines and WMC (Philippines), Inc. (WMCP), a
corporation organized under Philippine laws.
On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 279 6 authorizing
the DENR Secretary to accept, consider and evaluate proposals from foreign-owned corporations or
foreign investors for contracts or agreements involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of
the Secretary, the President may execute with the foreign proponent. In entering into such proposals, the
President shall consider the real contributions to the economic growth and general welfare of the country
that will be realized, as well as the development and use of local scientific and technical resources that
will be promoted by the proposed contract or agreement. Until Congress shall determine otherwise, large-
scale mining, for purpose of this Section, shall mean those proposals for contracts or agreements for
mineral resources exploration, development, and utilization involving a committed capital investment in a
single mining unit project of at least Fifty Million Dollars in United States Currency (US $50,000,000.00). 7
On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the exploration,
development, utilization and processing of all mineral resources." 8 R.A. No. 7942 defines the modes of
mineral agreements for mining operations,9 outlines the procedure for their filing and
approval,10 assignment/transfer11 and withdrawal,12and fixes their terms.13 Similar provisions govern
financial or technical assistance agreements.14
The law prescribes the qualifications of contractors 15 and grants them certain rights, including
timber,16 water17 and easement18 rights, and the right to possess explosives.19 Surface owners,
occupants, or concessionaires are forbidden from preventing holders of mining rights from entering
private lands and concession areas.20 A procedure for the settlement of conflicts is likewise provided for.21
The Act restricts the conditions for exploration,22 quarry23 and other24 permits. It regulates the transport,
sale and processing of minerals,25 and promotes the development of mining communities, science and
mining technology,26and safety and environmental protection.27
The government's share in the agreements is spelled out and allocated, 28 taxes and fees are
imposed,29 incentives granted.30 Aside from penalizing certain acts,31 the law likewise specifies grounds
for the cancellation, revocation and termination of agreements and permits. 32
On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two
newspapers of general circulation, R.A. No. 7942 took effect. 33 Shortly before the effectivity of R.A. No.
7942, however, or on March 30, 1995, the President entered into an FTAA with WMCP covering 99,387
hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato. 34
On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO)
No. 95-23, s. 1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This
was later repealed by DAO No. 96-40, s. 1996 which was adopted on December 20, 1996.
On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the
DENR stop the implementation of R.A. No. 7942 and DAO No. 96-40,35 giving the DENR fifteen days
from receipt36 to act thereon. The DENR, however, has yet to respond or act on petitioners' letter.37
Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary
restraining order. They allege that at the time of the filing of the petition, 100 FTAA applications had
already been filed, covering an area of 8.4 million hectares,38 64 of which applications are by fully foreign-
owned corporations covering a total of 5.8 million hectares, and at least one by a fully foreign-owned
mining company over offshore areas.39
Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction:
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No.
7942, the latter being unconstitutional in that it allows fully foreign owned corporations to explore,
develop, utilize and exploit mineral resources in a manner contrary to Section 2, paragraph 4, Article XII
of the Constitution;
II
7942, the latter being unconstitutional in that it allows the taking of private property without the
determination of public use and for just compensation;
III
7942, the latter being unconstitutional in that it violates Sec. 1, Art. III of the Constitution;
IV
7942, the latter being unconstitutional in that it allows enjoyment by foreign citizens as well as fully foreign
owned corporations of the nation's marine wealth contrary to Section 2, paragraph 2 of Article XII of the
Constitution;
7942, the latter being unconstitutional in that it allows priority to foreign and fully foreign owned
corporations in the exploration, development and utilization of mineral resources contrary to Article XII of
the Constitution;
VI
7942, the latter being unconstitutional in that it allows the inequitable sharing of wealth contrary to
Sections [sic] 1, paragraph 1, and Section 2, paragraph 4[,] [Article XII] of the Constitution;
VII
x x x in recommending approval of and implementing the Financial and Technical Assistance Agreement
between the President of the Republic of the Philippines and Western Mining Corporation Philippines Inc.
because the same is illegal and unconstitutional.40
They pray that the Court issue an order:
(a) Permanently enjoining respondents from acting on any application for Financial or Technical
Assistance Agreements;
(b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and
null and void;
(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in
DENR Administrative Order No. 96-40 and all other similar administrative issuances as
unconstitutional and null and void; and
(d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining
Philippines, Inc. as unconstitutional, illegal and null and void. 41
Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O. Ramos, the
then DENR Secretary, and Horacio Ramos, Director of the Mines and Geosciences Bureau of the DENR.
Also impleaded is private respondent WMCP, which entered into the assailed FTAA with the Philippine
Government. WMCP is owned by WMC Resources International Pty., Ltd. (WMC), "a wholly owned
subsidiary of Western Mining Corporation Holdings Limited, a publicly listed major Australian mining and
exploration company."42 By WMCP's information, "it is a 100% owned subsidiary of WMC LIMITED."43
Respondents, aside from meeting petitioners' contentions, argue that the requisites for judicial inquiry
have not been met and that the petition does not comply with the criteria for prohibition and mandamus.
Additionally, respondent WMCP argues that there has been a violation of the rule on hierarchy of courts.
After petitioners filed their reply, this Court granted due course to the petition. The parties have since filed
their respective memoranda.
WMCP subsequently filed a Manifestation dated September 25, 2002 alleging that on January 23, 2001,
WMC sold all its shares in WMCP to Sagittarius Mines, Inc. (Sagittarius), a corporation organized under
Philippine laws.44WMCP was subsequently renamed "Tampakan Mineral Resources
45
Corporation." WMCP claims that at least 60% of the equity of Sagittarius is owned by Filipinos and/or
Filipino-owned corporations while about 40% is owned by Indophil Resources NL, an Australian
company.46 It further claims that by such sale and transfer of shares, "WMCP has ceased to be
connected in any way with WMC."47
By virtue of such sale and transfer, the DENR Secretary, by Order of December 18, 2001, 48 approved the
transfer and registration of the subject FTAA from WMCP to Sagittarius. Said Order, however, was
appealed by Lepanto Consolidated Mining Co. (Lepanto) to the Office of the President which upheld it by
Decision of July 23, 2002.49 Its motion for reconsideration having been denied by the Office of the
President by Resolution of November 12, 2002,50 Lepanto filed a petition for review51 before the Court of
Appeals. Incidentally, two other petitions for review related to the approval of the transfer and registration
of the FTAA to Sagittarius were recently resolved by this Court.52
It bears stressing that this case has not been rendered moot either by the transfer and registration of the
FTAA to a Filipino-owned corporation or by the non-issuance of a temporary restraining order or a
preliminary injunction to stay the above-said July 23, 2002 decision of the Office of the President.53 The
validity of the transfer remains in dispute and awaits final judicial determination. This assumes, of course,
that such transfer cures the FTAA's alleged unconstitutionality, on which question judgment is reserved.
WMCP also points out that the original claimowners of the major mineralized areas included in the WMCP
FTAA, namely, Sagittarius, Tampakan Mining Corporation, and Southcot Mining Corporation, are all
Filipino-owned corporations,54 each of which was a holder of an approved Mineral Production Sharing
Agreement awarded in 1994, albeit their respective mineral claims were subsumed in the WMCP
FTAA;55 and that these three companies are the same companies that consolidated their interests in
Sagittarius to whom WMC sold its 100% equity in WMCP.56 WMCP concludes that in the event that the
FTAA is invalidated, the MPSAs of the three corporations would be revived and the mineral claims would
revert to their original claimants.57
These circumstances, while informative, are hardly significant in the resolution of this case, it involving the
validity of the FTAA, not the possible consequences of its invalidation.
Of the above-enumerated seven grounds cited by petitioners, as will be shown later, only the first and the
last need be delved into; in the latter, the discussion shall dwell only insofar as it questions the effectivity
of E. O. No. 279 by virtue of which order the questioned FTAA was forged.
I
Before going into the substantive issues, the procedural questions posed by respondents shall first be
tackled.
REQUISITES FOR JUDICIAL REVIEW
When an issue of constitutionality is raised, this Court can exercise its power of judicial review only if the
following requisites are present:
(1) The existence of an actual and appropriate case;
(2) A personal and substantial interest of the party raising the constitutional question;
(3) The exercise of judicial review is pleaded at the earliest opportunity; and
(4) The constitutional question is the lis mota of the case. 58
Respondents claim that the first three requisites are not present.
Section 1, Article VIII of the Constitution states that "(j)udicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable." The
power of judicial review, therefore, is limited to the determination of actual cases and controversies. 59
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory,60 lest the decision of the court would amount to an advisory
opinion.61 The power does not extend to hypothetical questions 62 since any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.63
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged,64alleging more than a generalized grievance.65 The gist of the question of standing is whether
a party alleges "such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for illumination of
difficult constitutional questions."66 Unless a person is injuriously affected in any of his constitutional rights
by the operation of statute or ordinance, he has no standing.67
Petitioners traverse a wide range of sectors. Among them are La Bugal B'laan Tribal Association, Inc., a
farmers and indigenous people's cooperative organized under Philippine laws representing a community
actually affected by the mining activities of WMCP, members of said cooperative, 68 as well as other
residents of areas also affected by the mining activities of WMCP.69 These petitioners have standing to
raise the constitutionality of the questioned FTAA as they allege a personal and substantial injury. They
claim that they would suffer "irremediable displacement"70 as a result of the implementation of the FTAA
allowing WMCP to conduct mining activities in their area of residence. They thus meet the appropriate
case requirement as they assert an interest adverse to that of respondents who, on the other hand, insist
on the FTAA's validity.
In view of the alleged impending injury, petitioners also have standing to assail the validity of E.O. No.
279, by authority of which the FTAA was executed.
Public respondents maintain that petitioners, being strangers to the FTAA, cannot sue either or both
contracting parties to annul it.71 In other words, they contend that petitioners are not real parties in interest
in an action for the annulment of contract.
Public respondents' contention fails. The present action is not merely one for annulment of contract but
for prohibition and mandamus. Petitioners allege that public respondents acted without or in excess of
jurisdiction in implementing the FTAA, which they submit is unconstitutional. As the case involves
constitutional questions, this Court is not concerned with whether petitioners are real parties in interest,
but with whether they have legal standing. As held in Kilosbayan v. Morato: 72
x x x. "It is important to note . . . that standing because of its constitutional and public policy
underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in
interest or has capacity to sue. Although all three requirements are directed towards ensuring that only
certain parties can maintain an action, standing restrictions require a partial consideration of the merits,
as well as broader policy concerns relating to the proper role of the judiciary in certain areas.["]
(FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328 [1985])
Standing is a special concern in constitutional law because in some cases suits are brought not by parties
who have been personally injured by the operation of a law or by official action taken, but by concerned
citizens, taxpayers or voters who actually sue in the public interest. Hence, the question in standing is
whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." (Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633
[1962].)
As earlier stated, petitioners meet this requirement.
The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-40 likewise fulfills the
requisites of justiciability. Although these laws were not in force when the subject FTAA was entered into,
the question as to their validity is ripe for adjudication.
The WMCP FTAA provides:
14.3 Future Legislation
Any term and condition more favourable to Financial &Technical Assistance Agreement contractors
resulting from repeal or amendment of any existing law or regulation or from the enactment of a law,
regulation or administrative order shall be considered a part of this Agreement.
It is undisputed that R.A. No. 7942 and DAO No. 96-40 contain provisions that are more favorable to
WMCP, hence, these laws, to the extent that they are favorable to WMCP, govern the FTAA.
In addition, R.A. No. 7942 explicitly makes certain provisions apply to pre-existing agreements.
SEC. 112. Non-impairment of Existing Mining/Quarrying Rights. – x x x That the provisions of Chapter
XIV on government share in mineral production-sharing agreement and of Chapter XVI on incentives of
this Act shall immediately govern and apply to a mining lessee or contractor unless the mining lessee or
contractor indicates his intention to the secretary, in writing, not to avail of said provisions x x x Provided,
finally, That such leases, production-sharing agreements, financial or technical assistance agreements
shall comply with the applicable provisions of this Act and its implementing rules and regulations.
As there is no suggestion that WMCP has indicated its intention not to avail of the provisions of Chapter
XVI of R.A. No. 7942, it can safely be presumed that they apply to the WMCP FTAA.
Misconstruing the application of the third requisite for judicial review – that the exercise of the review is
pleaded at the earliest opportunity – WMCP points out that the petition was filed only almost two years
after the execution of the FTAA, hence, not raised at the earliest opportunity.
The third requisite should not be taken to mean that the question of constitutionality must be raised
immediately after the execution of the state action complained of. That the question of constitutionality
has not been raised before is not a valid reason for refusing to allow it to be raised later. 73 A contrary rule
would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of
the proper party to promptly file a case to challenge the same.
PROPRIETY OF PROHIBITION AND MANDAMUS
Before the effectivity in July 1997 of the Revised Rules of Civil Procedure, Section 2 of Rule 65 read:
SEC. 2. Petition for prohibition. – When 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 proceeding in the action or matter specified therein.
Prohibition is a preventive remedy.74 It seeks a judgment ordering the defendant to desist from continuing
with the commission of an act perceived to be illegal.75
The petition for prohibition at bar is thus an appropriate remedy. While the execution of the contract itself
may be fait accompli, its implementation is not. Public respondents, in behalf of the Government, have
obligations to fulfill under said contract. Petitioners seek to prevent them from fulfilling such obligations on
the theory that the contract is unconstitutional and, therefore, void.
The propriety of a petition for prohibition being upheld, discussion of the propriety of the mandamus
aspect of the petition is rendered unnecessary.
HIERARCHY OF COURTS
The contention that the filing of this petition violated the rule on hierarchy of courts does not likewise lie.
The rule has been explained thus:
Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass upon
the issues of a case. That way, as a particular case goes through the hierarchy of courts, it is shorn of all
but the important legal issues or those of first impression, which are the proper subject of attention of the
appellate court. This is a procedural rule borne of experience and adopted to improve the administration
of justice.
This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has
concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a
party unrestricted freedom of choice of court forum. The resort to this Court's primary jurisdiction to issue
said writs shall be allowed only where the redress desired cannot be obtained in the appropriate courts or
where exceptional and compelling circumstances justify such invocation. We held in People v. Cuaresma
that:
A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only where there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy. It is a policy necessary
to prevent inordinate demands upon the Court's time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket x x
x.76 [Emphasis supplied.]
The repercussions of the issues in this case on the Philippine mining industry, if not the national
economy, as well as the novelty thereof, constitute exceptional and compelling circumstances to justify
resort to this Court in the first instance.
In all events, this Court has the discretion to take cognizance of a suit which does not satisfy the
requirements of an actual case or legal standing when paramount public interest is involved. 77 When the
issues raised are of paramount importance to the public, this Court may brush aside technicalities of
procedure.78
II
Petitioners contend that E.O. No. 279 did not take effect because its supposed date of effectivity came
after President Aquino had already lost her legislative powers under the Provisional Constitution.
And they likewise claim that the WMC FTAA, which was entered into pursuant to E.O. No. 279, violates
Section 2, Article XII of the Constitution because, among other reasons:
(1) It allows foreign-owned companies to extend more than mere financial or technical assistance
to the State in the exploitation, development, and utilization of minerals, petroleum, and other
mineral oils, and even permits foreign owned companies to "operate and manage mining
activities."
(2) It allows foreign-owned companies to extend both technical and financial assistance, instead
of "either technical or financial assistance."
To appreciate the import of these issues, a visit to the history of the pertinent constitutional provision, the
concepts contained therein, and the laws enacted pursuant thereto, is in order.
Section 2, Article XII reads in full:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State. The State may directly undertake such activities or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may
be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays,
and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution.
THE SPANISH REGIME AND THE REGALIAN DOCTRINE
The first sentence of Section 2 embodies the Regalian doctrine or jura regalia. Introduced by Spain into
these Islands, this feudal concept is based on the State's power of dominium, which is the capacity of the
State to own or acquire property.79
In its broad sense, the term "jura regalia" refers to royal rights, or those rights which the King has by virtue
of his prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a
subject has a right of property or propriedad. These were rights enjoyed during feudal times by the king
as the sovereign.
The theory of the feudal system was that title to all lands was originally held by the King, and while the
use of lands was granted out to others who were permitted to hold them under certain conditions, the
King theoretically retained the title. By fiction of law, the King was regarded as the original proprietor of all
lands, and the true and only source of title, and from him all lands were held. The theory of jura regalia
was therefore nothing more than a natural fruit of conquest.80
The Philippines having passed to Spain by virtue of discovery and conquest, 81 earlier Spanish decrees
declared that "all lands were held from the Crown."82
The Regalian doctrine extends not only to land but also to "all natural wealth that may be found in the
bowels of the earth."83 Spain, in particular, recognized the unique value of natural resources, viewing
them, especially minerals, as an abundant source of revenue to finance its wars against other
nations.84 Mining laws during the Spanish regime reflected this perspective.85
THE AMERICAN OCCUPATION AND THE CONCESSION REGIME
By the Treaty of Paris of December 10, 1898, Spain ceded "the archipelago known as the Philippine
Islands" to the United States. The Philippines was hence governed by means of organic acts that were in
the nature of charters serving as a Constitution of the occupied territory from 1900 to 1935. 86 Among the
principal organic acts of the Philippines was the Act of Congress of July 1, 1902, more commonly known
as the Philippine Bill of 1902, through which the United States Congress assumed the administration of
the Philippine Islands.87 Section 20 of said Bill reserved the disposition of mineral lands of the public
domain from sale. Section 21 thereof allowed the free and open exploration, occupation and purchase of
mineral deposits not only to citizens of the Philippine Islands but to those of the United States as well:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and
unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase, and the
land in which they are found, to occupation and purchase, by citizens of the United States or of said
Islands: Provided, That when on any lands in said Islands entered and occupied as agricultural lands
under the provisions of this Act, but not patented, mineral deposits have been found, the working of such
mineral deposits is forbidden until the person, association, or corporation who or which has entered and is
occupying such lands shall have paid to the Government of said Islands such additional sum or sums as
will make the total amount paid for the mineral claim or claims in which said deposits are located equal to
the amount charged by the Government for the same as mineral claims.
Unlike Spain, the United States considered natural resources as a source of wealth for its nationals and
saw fit to allow both Filipino and American citizens to explore and exploit minerals in public lands, and to
grant patents to private mineral lands.88 A person who acquired ownership over a parcel of private
mineral land pursuant to the laws then prevailing could exclude other persons, even the State, from
exploiting minerals within his property.89 Thus, earlier jurisprudence90 held that:
A valid and subsisting location of mineral land, made and kept up in accordance with the provisions of the
statutes of the United States, has the effect of a grant by the United States of the present and exclusive
possession of the lands located, and this exclusive right of possession and enjoyment continues during
the entire life of the location. x x x.
x x x.
The discovery of minerals in the ground by one who has a valid mineral location perfects his claim and his
location not only against third persons, but also against the Government. x x x. [Italics in the original.]
The Regalian doctrine and the American system, therefore, differ in one essential respect. Under the
Regalian theory, mineral rights are not included in a grant of land by the state; under the American
doctrine, mineral rights are included in a grant of land by the government. 91
Section 21 also made possible the concession (frequently styled "permit", license" or
"lease")92 system.93 This was the traditional regime imposed by the colonial administrators for the
exploitation of natural resources in the extractive sector (petroleum, hard minerals, timber, etc.). 94
Under the concession system, the concessionaire makes a direct equity investment for the purpose of
exploiting a particular natural resource within a given area.95 Thus, the concession amounts to complete
control by the concessionaire over the country's natural resource, for it is given exclusive and plenary
rights to exploit a particular resource at the point of extraction. 96 In consideration for the right to exploit a
natural resource, the concessionaire either pays rent or royalty, which is a fixed percentage of the gross
proceeds.97
Later statutory enactments by the legislative bodies set up in the Philippines adopted the contractual
framework of the concession.98 For instance, Act No. 2932,99 approved on August 31, 1920, which
provided for the exploration, location, and lease of lands containing petroleum and other mineral oils and
gas in the Philippines, and Act No. 2719,100 approved on May 14, 1917, which provided for the leasing
and development of coal lands in the Philippines, both utilized the concession system. 101
THE 1935 CONSTITUTION AND THE NATIONALIZATION OF NATURAL RESOURCES
By the Act of United States Congress of March 24, 1934, popularly known as the Tydings-McDuffie Law,
the People of the Philippine Islands were authorized to adopt a constitution. 102 On July 30, 1934, the
Constitutional Convention met for the purpose of drafting a constitution, and the Constitution
subsequently drafted was approved by the Convention on February 8, 1935. 103 The Constitution was
submitted to the President of the United States on March 18, 1935. 104 On March 23, 1935, the President
of the United States certified that the Constitution conformed substantially with the provisions of the Act of
Congress approved on March 24, 1934.105 On May 14, 1935, the Constitution was ratified by the Filipino
people.106
The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the Philippines,
including mineral lands and minerals, to be property belonging to the State. 107 As adopted in a republican
system, the medieval concept of jura regalia is stripped of royal overtones and ownership of the land is
vested in the State.108
Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935 Constitution
provided:
SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources
of the Philippines belong to the State, and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government established under
this Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the development
of water power, in which cases beneficial use may be the measure and the limit of the grant.
The nationalization and conservation of the natural resources of the country was one of the fixed and
dominating objectives of the 1935 Constitutional Convention.109 One delegate relates:
There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of
natural resources and the adoption of the Regalian doctrine. State ownership of natural resources was
seen as a necessary starting point to secure recognition of the state's power to control their disposition,
exploitation, development, or utilization. The delegates of the Constitutional Convention very well knew
that the concept of State ownership of land and natural resources was introduced by the Spaniards,
however, they were not certain whether it was continued and applied by the Americans. To remove all
doubts, the Convention approved the provision in the Constitution affirming the Regalian doctrine.
The adoption of the principle of state ownership of the natural resources and of the Regalian doctrine was
considered to be a necessary starting point for the plan of nationalizing and conserving the natural
resources of the country. For with the establishment of the principle of state ownership of the natural
resources, it would not be hard to secure the recognition of the power of the State to control their
disposition, exploitation, development or utilization.110
The nationalization of the natural resources was intended (1) to insure their conservation for Filipino
posterity; (2) to serve as an instrument of national defense, helping prevent the extension to the country
of foreign control through peaceful economic penetration; and (3) to avoid making the Philippines a
source of international conflicts with the consequent danger to its internal security and independence.111
The same Section 1, Article XIII also adopted the concession system, expressly permitting the State to
grant licenses, concessions, or leases for the exploitation, development, or utilization of any of the natural
resources. Grants, however, were limited to Filipinos or entities at least 60% of the capital of which is
owned by Filipinos.lawph!l.ne+
The swell of nationalism that suffused the 1935 Constitution was radically diluted when on November
1946, the Parity Amendment, which came in the form of an "Ordinance Appended to the Constitution,"
was ratified in a plebiscite.112 The Amendment extended, from July 4, 1946 to July 3, 1974, the right to
utilize and exploit our natural resources to citizens of the United States and business enterprises owned
or controlled, directly or indirectly, by citizens of the United States: 113
Notwithstanding the provision of section one, Article Thirteen, and section eight, Article Fourteen, of the
foregoing Constitution, during the effectivity of the Executive Agreement entered into by the President of
the Philippines with the President of the United States on the fourth of July, nineteen hundred and forty-
six, pursuant to the provisions of Commonwealth Act Numbered Seven hundred and thirty-three, but in no
case to extend beyond the third of July, nineteen hundred and seventy-four, the disposition, exploitation,
development, and utilization of all agricultural, timber, and mineral lands of the public domain, waters,
minerals, coals, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any person, be
open to citizens of the United States and to all forms of business enterprise owned or controlled, directly
or indirectly, by citizens of the United States in the same manner as to, and under the same conditions
imposed upon, citizens of the Philippines or corporations or associations owned or controlled by citizens
of the Philippines.
The Parity Amendment was subsequently modified by the 1954 Revised Trade Agreement, also known
as the Laurel-Langley Agreement, embodied in Republic Act No. 1355.114
THE PETROLEUM ACT OF 1949 AND THE CONCESSION SYSTEM
In the meantime, Republic Act No. 387,115 also known as the Petroleum Act of 1949, was approved on
June 18, 1949.
The Petroleum Act of 1949 employed the concession system for the exploitation of the nation's petroleum
resources. Among the kinds of concessions it sanctioned were exploration and exploitation concessions,
which respectively granted to the concessionaire the exclusive right to explore for 116 or
develop117 petroleum within specified areas.
Concessions may be granted only to duly qualified persons 118 who have sufficient finances, organization,
resources, technical competence, and skills necessary to conduct the operations to be undertaken. 119
Nevertheless, the Government reserved the right to undertake such work itself. 120 This proceeded from
the theory that all natural deposits or occurrences of petroleum or natural gas in public and/or private
lands in the Philippines belong to the State.121 Exploration and exploitation concessions did not confer
upon the concessionaire ownership over the petroleum lands and petroleum deposits.122 However, they
did grant concessionaires the right to explore, develop, exploit, and utilize them for the period and under
the conditions determined by the law.123
Concessions were granted at the complete risk of the concessionaire; the Government did not guarantee
the existence of petroleum or undertake, in any case, title warranty. 124
Concessionaires were required to submit information as maybe required by the Secretary of Agriculture
and Natural Resources, including reports of geological and geophysical examinations, as well as
production reports.125Exploration126 and exploitation127 concessionaires were also required to submit work
programs.lavvphi1.net
Exploitation concessionaires, in particular, were obliged to pay an annual exploitation tax,128 the object of
which is to induce the concessionaire to actually produce petroleum, and not simply to sit on the
concession without developing or exploiting it.129 These concessionaires were also bound to pay the
Government royalty, which was not less than 12½% of the petroleum produced and saved, less that
consumed in the operations of the concessionaire.130 Under Article 66, R.A. No. 387, the exploitation tax
may be credited against the royalties so that if the concessionaire shall be actually producing enough oil,
it would not actually be paying the exploitation tax.131
Failure to pay the annual exploitation tax for two consecutive years, 132 or the royalty due to the
Government within one year from the date it becomes due, 133 constituted grounds for the cancellation of
the concession. In case of delay in the payment of the taxes or royalty imposed by the law or by the
concession, a surcharge of 1% per month is exacted until the same are paid. 134
As a rule, title rights to all equipment and structures that the concessionaire placed on the land belong to
the exploration or exploitation concessionaire.135 Upon termination of such concession, the
concessionaire had a right to remove the same.136
The Secretary of Agriculture and Natural Resources was tasked with carrying out the provisions of the
law, through the Director of Mines, who acted under the Secretary's immediate supervision and
control.137 The Act granted the Secretary the authority to inspect any operation of the concessionaire and
to examine all the books and accounts pertaining to operations or conditions related to payment of taxes
and royalties.138
The same law authorized the Secretary to create an Administration Unit and a Technical Board. 139 The
Administration Unit was charged, inter alia, with the enforcement of the provisions of the law. 140 The
Technical Board had, among other functions, the duty to check on the performance of concessionaires
and to determine whether the obligations imposed by the Act and its implementing regulations were being
complied with.141
Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy Development, analyzed the
benefits and drawbacks of the concession system insofar as it applied to the petroleum industry:
Advantages of Concession. Whether it emphasizes income tax or royalty, the most positive aspect of the
concession system is that the State's financial involvement is virtually risk free and administration is
simple and comparatively low in cost. Furthermore, if there is a competitive allocation of the resource
leading to substantial bonuses and/or greater royalty coupled with a relatively high level of taxation,
revenue accruing to the State under the concession system may compare favorably with other financial
arrangements.
Disadvantages of Concession. There are, however, major negative aspects to this system. Because the
Government's role in the traditional concession is passive, it is at a distinct disadvantage in managing and
developing policy for the nation's petroleum resource. This is true for several reasons. First, even though
most concession agreements contain covenants requiring diligence in operations and production, this
establishes only an indirect and passive control of the host country in resource development. Second,
and more importantly, the fact that the host country does not directly participate in resource management
decisions inhibits its ability to train and employ its nationals in petroleum development. This factor could
delay or prevent the country from effectively engaging in the development of its resources. Lastly, a direct
role in management is usually necessary in order to obtain a knowledge of the international petroleum
industry which is important to an appreciation of the host country's resources in relation to those of other
countries.142
Other liabilities of the system have also been noted:
x x x there are functional implications which give the concessionaire great economic power arising from
its exclusive equity holding. This includes, first, appropriation of the returns of the undertaking, subject to
a modest royalty; second, exclusive management of the project; third, control of production of the natural
resource, such as volume of production, expansion, research and development; and fourth, exclusive
responsibility for downstream operations, like processing, marketing, and distribution. In short, even if
nominally, the state is the sovereign and owner of the natural resource being exploited, it has been shorn
of all elements of control over such natural resource because of the exclusive nature of the contractual
regime of the concession. The concession system, investing as it does ownership of natural resources,
constitutes a consistent inconsistency with the principle embodied in our Constitution that natural
resources belong to the state and shall not be alienated, not to mention the fact that the concession was
the bedrock of the colonial system in the exploitation of natural resources. 143
Eventually, the concession system failed for reasons explained by Dimagiba:

Notwithstanding the good intentions of the Petroleum Act of 1949, the concession system could not have
properly spurred sustained oil exploration activities in the country, since it assumed that such a capital-
intensive, high risk venture could be successfully undertaken by a single individual or a small company. In
effect, concessionaires' funds were easily exhausted. Moreover, since the concession system practically
closed its doors to interested foreign investors, local capital was stretched to the limits. The old system
also failed to consider the highly sophisticated technology and expertise required, which would be
available only to multinational companies.144
A shift to a new regime for the development of natural resources thus seemed imminent.
PRESIDENTIAL DECREE NO. 87, THE 1973 CONSTITUTION AND THE SERVICE CONTRACT
SYSTEM
The promulgation on December 31, 1972 of Presidential Decree No. 87, 145 otherwise known as The Oil
Exploration and Development Act of 1972 signaled such a transformation. P.D. No. 87 permitted the
government to explore for and produce indigenous petroleum through "service contracts." 146
"Service contracts" is a term that assumes varying meanings to different people, and it has carried many
names in different countries, like "work contracts" in Indonesia, "concession agreements" in Africa,
"production-sharing agreements" in the Middle East, and "participation agreements" in Latin America. 147 A
functional definition of "service contracts" in the Philippines is provided as follows:
A service contract is a contractual arrangement for engaging in the exploitation and development of
petroleum, mineral, energy, land and other natural resources by which a government or its agency, or a
private person granted a right or privilege by the government authorizes the other party (service
contractor) to engage or participate in the exercise of such right or the enjoyment of the privilege, in that
the latter provides financial or technical resources, undertakes the exploitation or production of a given
resource, or directly manages the productive enterprise, operations of the exploration and exploitation of
the resources or the disposition of marketing or resources.148
In a service contract under P.D. No. 87, service and technology are furnished by the service contractor for
which it shall be entitled to the stipulated service fee.149 The contractor must be technically competent and
financially capable to undertake the operations required in the contract. 150
Financing is supposed to be provided by the Government to which all petroleum produced belongs.151 In
case the Government is unable to finance petroleum exploration operations, the contractor may furnish
services, technology and financing, and the proceeds of sale of the petroleum produced under the
contract shall be the source of funds for payment of the service fee and the operating expenses due the
contractor.152 The contractor shall undertake, manage and execute petroleum operations, subject to the
government overseeing the management of the operations.153 The contractor provides all necessary
services and technology and the requisite financing, performs the exploration work obligations, and
assumes all exploration risks such that if no petroleum is produced, it will not be entitled to
reimbursement.154 Once petroleum in commercial quantity is discovered, the contractor shall operate the
field on behalf of the government.155
P.D. No. 87 prescribed minimum terms and conditions for every service contract. 156 It also granted the
contractor certain privileges, including exemption from taxes and payment of tariff duties, 157 and permitted
the repatriation of capital and retention of profits abroad.158
Ostensibly, the service contract system had certain advantages over the concession regime. 159 It has
been opined, though, that, in the Philippines, our concept of a service contract, at least in the petroleum
industry, was basically a concession regime with a production-sharing element.160
On January 17, 1973, then President Ferdinand E. Marcos proclaimed the ratification of a new
Constitution.161Article XIV on the National Economy and Patrimony contained provisions similar to the
1935 Constitution with regard to Filipino participation in the nation's natural resources. Section 8, Article
XIV thereof provides:
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces
of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State.
With the exception of agricultural, industrial or commercial, residential and resettlement lands of the
public domain, natural resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water
rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power,
in which cases beneficial use may be the measure and the limit of the grant.
While Section 9 of the same Article maintained the Filipino-only policy in the enjoyment of natural
resources, it also allowed Filipinos, upon authority of the Batasang Pambansa, to enter into service
contracts with any person or entity for the exploration or utilization of natural resources.
Sec. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens, or to corporations or associations at least sixty per
centum of which is owned by such citizens. The Batasang Pambansa, in the national interest, may allow
such citizens, corporations or associations to enter into service contracts for financial, technical,
management, or other forms of assistance with any person or entity for the exploration, or utilization of
any of the natural resources. Existing valid and binding service contracts for financial, technical,
management, or other forms of assistance are hereby recognized as such. [Emphasis supplied.]
The concept of service contracts, according to one delegate, was borrowed from the methods followed by
India, Pakistan and especially Indonesia in the exploration of petroleum and mineral oils. 162 The provision
allowing such contracts, according to another, was intended to "enhance the proper development of our
natural resources since Filipino citizens lack the needed capital and technical know-how which are
essential in the proper exploration, development and exploitation of the natural resources of the
country."163
The original idea was to authorize the government, not private entities, to enter into service contracts with
foreign entities.164 As finally approved, however, a citizen or private entity could be allowed by the
National Assembly to enter into such service contract.165 The prior approval of the National Assembly was
deemed sufficient to protect the national interest.166 Notably, none of the laws allowing service contracts
were passed by the Batasang Pambansa. Indeed, all of them were enacted by presidential decree.
On March 13, 1973, shortly after the ratification of the new Constitution, the President promulgated
Presidential Decree No. 151.167 The law allowed Filipino citizens or entities which have acquired lands of
the public domain or which own, hold or control such lands to enter into service contracts for financial,
technical, management or other forms of assistance with any foreign persons or entity for the exploration,
development, exploitation or utilization of said lands.168
Presidential Decree No. 463,169 also known as The Mineral Resources Development Decree of 1974, was
enacted on May 17, 1974. Section 44 of the decree, as amended, provided that a lessee of a mining
claim may enter into a service contract with a qualified domestic or foreign contractor for the exploration,
development and exploitation of his claims and the processing and marketing of the product thereof.
Presidential Decree No. 704170 (The Fisheries Decree of 1975), approved on May 16, 1975, allowed
Filipinos engaged in commercial fishing to enter into contracts for financial, technical or other forms of
assistance with any foreign person, corporation or entity for the production, storage, marketing and
processing of fish and fishery/aquatic products.171
Presidential Decree No. 705172 (The Revised Forestry Code of the Philippines), approved on May 19,
1975, allowed "forest products licensees, lessees, or permitees to enter into service contracts for
financial, technical, management, or other forms of assistance . . . with any foreign person or entity for the
exploration, development, exploitation or utilization of the forest resources." 173
Yet another law allowing service contracts, this time for geothermal resources, was Presidential Decree
No. 1442,174 which was signed into law on June 11, 1978. Section 1 thereof authorized the Government
to enter into service contracts for the exploration, exploitation and development of geothermal resources
with a foreign contractor who must be technically and financially capable of undertaking the operations
required in the service contract.
Thus, virtually the entire range of the country's natural resources –from petroleum and minerals to
geothermal energy, from public lands and forest resources to fishery products – was well covered by
apparent legal authority to engage in the direct participation or involvement of foreign persons or
corporations (otherwise disqualified) in the exploration and utilization of natural resources through service
contracts.175
THE 1987 CONSTITUTION AND TECHNICAL OR FINANCIAL ASSISTANCE AGREEMENTS
After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins of power under a
revolutionary government. On March 25, 1986, President Aquino issued Proclamation No.
3,176 promulgating the Provisional Constitution, more popularly referred to as the Freedom Constitution.
By authority of the same Proclamation, the President created a Constitutional Commission (CONCOM) to
draft a new constitution, which took effect on the date of its ratification on February 2, 1987. 177
The 1987 Constitution retained the Regalian doctrine. The first sentence of Section 2, Article XII states:
"All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State."
Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the second sentence of the same
provision, prohibits the alienation of natural resources, except agricultural lands.
The third sentence of the same paragraph is new: "The exploration, development and utilization of natural
resources shall be under the full control and supervision of the State." The constitutional policy of the
State's "full control and supervision" over natural resources proceeds from the concept of jura regalia, as
well as the recognition of the importance of the country's natural resources, not only for national economic
development, but also for its security and national defense. 178 Under this provision, the State assumes "a
more dynamic role" in the exploration, development and utilization of natural resources. 179
Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions authorizing the
State to grant licenses, concessions, or leases for the exploration, exploitation, development, or utilization
of natural resources. By such omission, the utilization of inalienable lands of public domain through
"license, concession or lease" is no longer allowed under the 1987 Constitution. 180
Having omitted the provision on the concession system, Section 2 proceeded to introduce "unfamiliar
language":181
The State may directly undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens.
Consonant with the State's "full supervision and control" over natural resources, Section 2 offers the State
two "options."182 One, the State may directly undertake these activities itself; or two, it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or entities at least 60%
of whose capital is owned by such citizens.
A third option is found in the third paragraph of the same section:
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays,
and lagoons.
While the second and third options are limited only to Filipino citizens or, in the case of the former, to
corporations or associations at least 60% of the capital of which is owned by Filipinos, a fourth allows the
participation of foreign-owned corporations. The fourth and fifth paragraphs of Section 2 provide:
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution.
Although Section 2 sanctions the participation of foreign-owned corporations in the exploration,

development, and utilization of natural resources, it imposes certain limitations or conditions to
agreements with such corporations.
First, the parties to FTAAs. Only the President, in behalf of the State, may enter into these
agreements, and only with corporations. By contrast, under the 1973 Constitution, a Filipino
citizen, corporation or association may enter into a service contract with a "foreign person or
entity."
Second, the size of the activities: only large-scale exploration, development, and utilization is
allowed. The term "large-scale usually refers to very capital-intensive activities."183
Third, the natural resources subject of the activities is restricted to minerals, petroleum and other
mineral oils, the intent being to limit service contracts to those areas where Filipino capital may
not be sufficient.184
Fourth, consistency with the provisions of statute. The agreements must be in accordance with
the terms and conditions provided by law.
Fifth, Section 2 prescribes certain standards for entering into such agreements. The agreements
must be based on real contributions to economic growth and general welfare of the country.
Sixth, the agreements must contain rudimentary stipulations for the promotion of the development
and use of local scientific and technical resources.
Seventh, the notification requirement. The President shall notify Congress of every financial or
technical assistance agreement entered into within thirty days from its execution.
Finally, the scope of the agreements. While the 1973 Constitution referred to "service contracts
for financial, technical, management, or other forms of assistance" the 1987 Constitution provides
for "agreements. . . involving either financial or technical assistance." It bears noting that the
phrases "service contracts" and "management or other forms of assistance" in the earlier
constitution have been omitted.
By virtue of her legislative powers under the Provisional Constitution, 185 President Aquino, on July 10,
1987, signed into law E.O. No. 211 prescribing the interim procedures in the processing and approval of
applications for the exploration, development and utilization of minerals. The omission in the 1987
Constitution of the term "service contracts" notwithstanding, the said E.O. still referred to them in Section
2 thereof:
Sec. 2. Applications for the exploration, development and utilization of mineral resources, including
renewal applications and applications for approval of operating agreements and mining service contracts,
shall be accepted and processed and may be approved x x x. [Emphasis supplied.]
The same law provided in its Section 3 that the "processing, evaluation and approval of all mining
applications . . . operating agreements and service contracts . . . shall be governed by Presidential
Decree No. 463, as amended, other existing mining laws, and their implementing rules and regulations. . .
."
As earlier stated, on the 25th also of July 1987, the President issued E.O. No. 279 by authority of which
the subject WMCP FTAA was executed on March 30, 1995.
On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section 15 thereof declares that the
Act "shall govern the exploration, development, utilization, and processing of all mineral resources." Such
declaration notwithstanding, R.A. No. 7942 does not actually cover all the modes through which the State
may undertake the exploration, development, and utilization of natural resources.
The State, being the owner of the natural resources, is accorded the primary power and responsibility in
the exploration, development and utilization thereof. As such, it may undertake these activities through
four modes:
The State may directly undertake such activities.
(2) The State may enter into co-production, joint venture or production-sharing agreements with
Filipino citizens or qualified corporations.
(3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens.
(4) For the large-scale exploration, development and utilization of minerals, petroleum and other
mineral oils, the President may enter into agreements with foreign-owned corporations involving
technical or financial assistance.186
Except to charge the Mines and Geosciences Bureau of the DENR with performing researches and
surveys,187 and a passing mention of government-owned or controlled corporations,188 R.A. No. 7942
does not specify how the State should go about the first mode. The third mode, on the other hand, is
governed by Republic Act No. 7076189(the People's Small-Scale Mining Act of 1991) and other pertinent
laws.190 R.A. No. 7942 primarily concerns itself with the second and fourth modes.
Mineral production sharing, co-production and joint venture agreements are collectively classified by R.A.
No. 7942 as "mineral agreements."191 The Government participates the least in a mineral production
sharing agreement (MPSA). In an MPSA, the Government grants the contractor192 the exclusive right to
conduct mining operations within a contract area193 and shares in the gross output.194 The MPSA
contractor provides the financing, technology, management and personnel necessary for the agreement's
implementation.195 The total government share in an MPSA is the excise tax on mineral products under
Republic Act No. 7729,196 amending Section 151(a) of the National Internal Revenue Code, as
amended.197
In a co-production agreement (CA),198 the Government provides inputs to the mining operations other
than the mineral resource,199 while in a joint venture agreement (JVA), where the Government enjoys the
greatest participation, the Government and the JVA contractor organize a company with both parties
having equity shares.200 Aside from earnings in equity, the Government in a JVA is also entitled to a share
in the gross output.201The Government may enter into a CA202 or JVA203 with one or more contractors.
The Government's share in a CA or JVA is set out in Section 81 of the law:
The share of the Government in co-production and joint venture agreements shall be negotiated by the
Government and the contractor taking into consideration the: (a) capital investment of the project, (b) the
risks involved, (c) contribution of the project to the economy, and (d) other factors that will provide for a
fair and equitable sharing between the Government and the contractor. The Government shall also be
entitled to compensations for its other contributions which shall be agreed upon by the parties, and shall
consist, among other things, the contractor's income tax, excise tax, special allowance, withholding tax
due from the contractor's foreign stockholders arising from dividend or interest payments to the said
foreign stockholders, in case of a foreign national and all such other taxes, duties and fees as provided
for under existing laws.
All mineral agreements grant the respective contractors the exclusive right to conduct mining operations
and to extract all mineral resources found in the contract area.204 A "qualified person" may enter into any
of the mineral agreements with the Government.205 A "qualified person" is
any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or
cooperative organized or authorized for the purpose of engaging in mining, with technical and financial
capability to undertake mineral resources development and duly registered in accordance with law at
least sixty per centum (60%) of the capital of which is owned by citizens of the Philippines x x x.206
The fourth mode involves "financial or technical assistance agreements." An FTAA is defined as "a
contract involving financial or technical assistance for large-scale exploration, development, and
utilization of natural resources."207 Any qualified person with technical and financial capability to undertake
large-scale exploration, development, and utilization of natural resources in the Philippines may enter into
such agreement directly with the Government through the DENR.208 For the purpose of granting an FTAA,
a legally organized foreign-owned corporation (any corporation, partnership, association, or cooperative
duly registered in accordance with law in which less than 50% of the capital is owned by Filipino
citizens)209 is deemed a "qualified person."210
Other than the difference in contractors' qualifications, the principal distinction between mineral
agreements and FTAAs is the maximum contract area to which a qualified person may hold or be
granted.211 "Large-scale" under R.A. No. 7942 is determined by the size of the contract area, as opposed
to the amount invested (US $50,000,000.00), which was the standard under E.O. 279.
Like a CA or a JVA, an FTAA is subject to negotiation.212 The Government's contributions, in the form of
taxes, in an FTAA is identical to its contributions in the two mineral agreements, save that in an FTAA:
The collection of Government share in financial or technical assistance agreement shall commence after
the financial or technical assistance agreement contractor has fully recovered its pre-operating expenses,
exploration, and development expenditures, inclusive. 213
III
Having examined the history of the constitutional provision and statutes enacted pursuant thereto, a
consideration of the substantive issues presented by the petition is now in order.
THE EFFECTIVITY OF EXECUTIVE ORDER NO. 279
Petitioners argue that E.O. No. 279, the law in force when the WMC FTAA was executed, did not come
into effect.
E.O. No. 279 was signed into law by then President Aquino on July 25, 1987, two days before the
opening of Congress on July 27, 1987.214 Section 8 of the E.O. states that the same "shall take effect
immediately." This provision, according to petitioners, runs counter to Section 1 of E.O. No. 200, 215 which
provides:
SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in
the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise
provided.216 [Emphasis supplied.]
On that premise, petitioners contend that E.O. No. 279 could have only taken effect fifteen days after its
publication at which time Congress had already convened and the President's power to legislate had
ceased.
Respondents, on the other hand, counter that the validity of E.O. No. 279 was settled in Miners
Association of the Philippines v. Factoran, supra. This is of course incorrect for the issue in Miners
Association was not the validity of E.O. No. 279 but that of DAO Nos. 57 and 82 which were issued
pursuant thereto.
Nevertheless, petitioners' contentions have no merit.
It bears noting that there is nothing in E.O. No. 200 that prevents a law from taking effect on a date other
than – even before – the 15-day period after its publication. Where a law provides for its own date of
effectivity, such date prevails over that prescribed by E.O. No. 200. Indeed, this is the very essence of the
phrase "unless it is otherwise provided" in Section 1 thereof. Section 1, E.O. No. 200, therefore, applies
only when a statute does not provide for its own date of effectivity.
What is mandatory under E.O. No. 200, and what due process requires, as this Court held in Tañada v.
Tuvera,217is the publication of the law for without such notice and publication, there would be no basis for
the application of the maxim "ignorantia legis n[eminem] excusat." It would be the height of injustice to
punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever,
not even a constructive one.
While the effectivity clause of E.O. No. 279 does not require its publication, it is not a ground for its
invalidation since the Constitution, being "the fundamental, paramount and supreme law of the nation," is
deemed written in the law.218 Hence, the due process clause,219 which, so Tañada held, mandates the
publication of statutes, is read into Section 8 of E.O. No. 279. Additionally, Section 1 of E.O. No. 200
which provides for publication "either in the Official Gazette or in a newspaper of general circulation in the
Philippines," finds suppletory application. It is significant to note that E.O. No. 279 was actually published
in the Official Gazette220 on August 3, 1987.
From a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Tañada v. Tuvera, this
Court holds that E.O. No. 279 became effective immediately upon its publication in the Official Gazette on
August 3, 1987.
That such effectivity took place after the convening of the first Congress is irrelevant. At the time
President Aquino issued E.O. No. 279 on July 25, 1987, she was still validly exercising legislative powers
under the Provisional Constitution.221 Article XVIII (Transitory Provisions) of the 1987 Constitution
explicitly states:
Sec. 6. The incumbent President shall continue to exercise legislative powers until the first Congress is
convened.
The convening of the first Congress merely precluded the exercise of legislative powers by President
Aquino; it did not prevent the effectivity of laws she had previously enacted.
There can be no question, therefore, that E.O. No. 279 is an effective, and a validly enacted, statute.
THE CONSTITUTIONALITY OF THE WMCP FTAA
Petitioners submit that, in accordance with the text of Section 2, Article XII of the Constitution, FTAAs
should be limited to "technical or financial assistance" only. They observe, however, that, contrary to the
language of the Constitution, the WMCP FTAA allows WMCP, a fully foreign-owned mining corporation,
to extend more than mere financial or technical assistance to the State, for it permits WMCP to manage
and operate every aspect of the mining activity. 222
Petitioners' submission is well-taken. It is a cardinal rule in the interpretation of constitutions that the
instrument must be so construed as to give effect to the intention of the people who adopted it.223 This
intention is to be sought in the constitution itself, and the apparent meaning of the words is to be taken as
expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or
contradiction.224 What the Constitution says according to the text of the provision, therefore, compels
acceptance and negates the power of the courts to alter it, based on the postulate that the framers and
the people mean what they say.225 Accordingly, following the literal text of the Constitution, assistance
accorded by foreign-owned corporations in the large-scale exploration, development, and utilization of
petroleum, minerals and mineral oils should be limited to "technical" or "financial" assistance only.
WMCP nevertheless submits that the word "technical" in the fourth paragraph of Section 2 of E.O. No.
279 encompasses a "broad number of possible services," perhaps, "scientific and/or technological in
basis."226 It thus posits that it may also well include "the area of management or operations . . . so long as
such assistance requires specialized knowledge or skills, and are related to the exploration, development
and utilization of mineral resources."227
This Court is not persuaded. As priorly pointed out, the phrase "management or other forms of
assistance" in the 1973 Constitution was deleted in the 1987 Constitution, which allows only "technical or
financial assistance." Casus omisus pro omisso habendus est. A person, object or thing omitted from an
enumeration must be held to have been omitted intentionally. 228 As will be shown later, the management
or operation of mining activities by foreign contractors, which is the primary feature of service contracts,
was precisely the evil that the drafters of the 1987 Constitution sought to eradicate.
Respondents insist that "agreements involving technical or financial assistance" is just another term for
service contracts. They contend that the proceedings of the CONCOM indicate "that although the
terminology 'service contract' was avoided [by the Constitution], the concept it represented was not." They
add that "[t]he concept is embodied in the phrase 'agreements involving financial or technical
assistance.'"229 And point out how members of the CONCOM referred to these agreements as "service
contracts." For instance:
SR. TAN. Am I correct in thinking that the only difference between these future service contracts
and the past service contracts under Mr. Marcos is the general law to be enacted by the
legislature and the notification of Congress by the President? That is the only difference, is it not?
MR. VILLEGAS. That is right.
SR. TAN. So those are the safeguards[?]
MR. VILLEGAS. Yes. There was no law at all governing service contracts before.
SR. TAN. Thank you, Madam President.230 [Emphasis supplied.]
WMCP also cites the following statements of Commissioners Gascon, Garcia, Nolledo and Tadeo
who alluded to service contracts as they explained their respective votes in the approval of the
draft Article:
MR. GASCON. Mr. Presiding Officer, I vote no primarily because of two reasons: One, the
provision on service contracts. I felt that if we would constitutionalize any provision on service
contracts, this should always be with the concurrence of Congress and not guided only by a
general law to be promulgated by Congress. x x x.231 [Emphasis supplied.]
x x x.
MR. GARCIA. Thank you.
I vote no. x x x.
Service contracts are given constitutional legitimization in Section 3, even when they have been
proven to be inimical to the interests of the nation, providing as they do the legal loophole for the
exploitation of our natural resources for the benefit of foreign interests. They constitute a serious
negation of Filipino control on the use and disposition of the nation's natural resources, especially
with regard to those which are nonrenewable.232[Emphasis supplied.]
xxx
MR. NOLLEDO. While there are objectionable provisions in the Article on National Economy and
Patrimony, going over said provisions meticulously, setting aside prejudice and personalities will
reveal that the article contains a balanced set of provisions. I hope the forthcoming Congress will
implement such provisions taking into account that Filipinos should have real control over our
economy and patrimony, and if foreign equity is permitted, the same must be subordinated to the
imperative demands of the national interest.
x x x.
It is also my understanding that service contracts involving foreign corporations or entities are
resorted to only when no Filipino enterprise or Filipino-controlled enterprise could possibly
undertake the exploration or exploitation of our natural resources and that compensation under
such contracts cannot and should not equal what should pertain to ownership of capital. In other
words, the service contract should not be an instrument to circumvent the basic provision, that the
exploration and exploitation of natural resources should be truly for the benefit of Filipinos.
Thank you, and I vote yes.233 [Emphasis supplied.]
x x x.
MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.

Matapos suriin ang kalagayan ng Pilipinas, ang saligang suliranin, pangunahin ang salitang
"imperyalismo." Ang ibig sabihin nito ay ang sistema ng lipunang pinaghaharian ng iilang
monopolyong kapitalista at ang salitang "imperyalismo" ay buhay na buhay sa National Economy
and Patrimony na nating ginawa. Sa pamamagitan ng salitang "based on," naroroon na ang free
trade sapagkat tayo ay mananatiling tagapagluwas ng hilaw na sangkap at tagaangkat ng yaring
produkto. Pangalawa, naroroon pa rin ang parity rights, ang service contract, ang 60-40 equity sa
natural resources. Habang naghihirap ang sambayanang Pilipino, ginagalugad naman ng mga
dayuhan ang ating likas na yaman. Kailan man ang Article on National Economy and Patrimony
ay hindi nagpaalis sa pagkaalipin ng ating ekonomiya sa kamay ng mga dayuhan. Ang solusyon
sa suliranin ng bansa ay dalawa lamang: ang pagpapatupad ng tunay na reporma sa lupa at ang
national industrialization. Ito ang tinatawag naming pagsikat ng araw sa Silangan. Ngunit ang
mga landlords and big businessmen at ang mga komprador ay nagsasabi na ang free trade na
ito, ang kahulugan para sa amin, ay ipinipilit sa ating sambayanan na ang araw ay sisikat sa
Kanluran. Kailan man hindi puwedeng sumikat ang araw sa Kanluran. I vote no. 234 [Emphasis
supplied.]
This Court is likewise not persuaded.
As earlier noted, the phrase "service contracts" has been deleted in the 1987 Constitution's Article on
National Economy and Patrimony. If the CONCOM intended to retain the concept of service contracts
under the 1973 Constitution, it could have simply adopted the old terminology ("service contracts")
instead of employing new and unfamiliar terms ("agreements . . . involving either technical or financial
assistance"). Such a difference between the language of a provision in a revised constitution and that of a
similar provision in the preceding constitution is viewed as indicative of a difference in purpose. 235 If, as
respondents suggest, the concept of "technical or financial assistance" agreements is identical to that of
"service contracts," the CONCOM would not have bothered to fit the same dog with a new collar. To
uphold respondents' theory would reduce the first to a mere euphemism for the second and render the
change in phraseology meaningless.
An examination of the reason behind the change confirms that technical or financial assistance
agreements are not synonymous to service contracts.
[T]he Court in construing a Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined
in light of the history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose. 236
As the following question of Commissioner Quesada and Commissioner Villegas' answer shows the
drafters intended to do away with service contracts which were used to circumvent the capitalization
(60%-40%) requirement:
MS. QUESADA. The 1973 Constitution used the words "service contracts." In this particular
Section 3, is there a safeguard against the possible control of foreign interests if the Filipinos go
into coproduction with them?
MR. VILLEGAS. Yes. In fact, the deletion of the phrase "service contracts" was our first attempt
to avoid some of the abuses in the past regime in the use of service contracts to go around the
60-40 arrangement. The safeguard that has been introduced – and this, of course can be refined
– is found in Section 3, lines 25 to 30, where Congress will have to concur with the President on
any agreement entered into between a foreign-owned corporation and the government involving
technical or financial assistance for large-scale exploration, development and utilization of natural
resources.237 [Emphasis supplied.]
In a subsequent discussion, Commissioner Villegas allayed the fears of Commissioner Quesada
regarding the participation of foreign interests in Philippine natural resources, which was
supposed to be restricted to Filipinos.
MS. QUESADA. Another point of clarification is the phrase "and utilization of natural resources
shall be under the full control and supervision of the State." In the 1973 Constitution, this was
limited to citizens of the Philippines; but it was removed and substituted by "shall be under the full
control and supervision of the State." Was the concept changed so that these particular
resources would be limited to citizens of the Philippines? Or would these resources only be under
the full control and supervision of the State; meaning, noncitizens would have access to these
natural resources? Is that the understanding?
MR. VILLEGAS. No, Mr. Vice-President, if the Commissioner reads the next sentence, it states:
Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture,
production-sharing agreements with Filipino citizens.
So we are still limiting it only to Filipino citizens.
x x x.
MS. QUESADA. Going back to Section 3, the section suggests that:
The exploration, development, and utilization of natural resources… may be directly undertaken by the
State, or it may enter into co-production, joint venture or production-sharing agreement with . . .
corporations or associations at least sixty per cent of whose voting stock or controlling interest is owned
by such citizens.
Lines 25 to 30, on the other hand, suggest that in the large-scale exploration, development and utilization
of natural resources, the President with the concurrence of Congress may enter into agreements with
foreign-owned corporations even for technical or financial assistance.
I wonder if this part of Section 3 contradicts the second part. I am raising this point for fear that foreign
investors will use their enormous capital resources to facilitate the actual exploitation or exploration,
development and effective disposition of our natural resources to the detriment of Filipino investors. I am
not saying that we should not consider borrowing money from foreign sources. What I refer to is that
foreign interest should be allowed to participate only to the extent that they lend us money and give us
technical assistance with the appropriate government permit. In this way, we can insure the enjoyment of
our natural resources by our own people.
MR. VILLEGAS. Actually, the second provision about the President does not permit foreign investors to
participate. It is only technical or financial assistance – they do not own anything – but on conditions that
have to be determined by law with the concurrence of Congress. So, it is very restrictive.
If the Commissioner will remember, this removes the possibility for service contracts which we said
yesterday were avenues used in the previous regime to go around the 60-40 requirement.238 [Emphasis
supplied.]
The present Chief Justice, then a member of the CONCOM, also referred to this limitation in scope in
proposing an amendment to the 60-40 requirement:
MR. DAVIDE. May I be allowed to explain the proposal?

MR. MAAMBONG. Subject to the three-minute rule, Madam President.
MR. DAVIDE. It will not take three minutes.
The Commission had just approved the Preamble. In the Preamble we clearly stated that the Filipino
people are sovereign and that one of the objectives for the creation or establishment of a government is
to conserve and develop the national patrimony. The implication is that the national patrimony or our
natural resources are exclusively reserved for the Filipino people. No alien must be allowed to enjoy,
exploit and develop our natural resources. As a matter of fact, that principle proceeds from the fact that
our natural resources are gifts from God to the Filipino people and it would be a breach of that special
blessing from God if we will allow aliens to exploit our natural resources.
I voted in favor of the Jamir proposal because it is not really exploitation that we granted to the alien
corporations but only for them to render financial or technical assistance. It is not for them to enjoy our
natural resources. Madam President, our natural resources are depleting; our population is increasing by
leaps and bounds. Fifty years from now, if we will allow these aliens to exploit our natural resources, there
will be no more natural resources for the next generations of Filipinos. It may last long if we will begin
now. Since 1935 the aliens have been allowed to enjoy to a certain extent the exploitation of our natural
resources, and we became victims of foreign dominance and control. The aliens are interested in coming
to the Philippines because they would like to enjoy the bounty of nature exclusively intended for Filipinos
by God.
And so I appeal to all, for the sake of the future generations, that if we have to pray in the Preamble "to
preserve and develop the national patrimony for the sovereign Filipino people and for the generations to
come," we must at this time decide once and for all that our natural resources must be reserved only to
Filipino citizens.
Thank you.239 [Emphasis supplied.]
The opinion of another member of the CONCOM is persuasive 240 and leaves no doubt as to the intention
of the framers to eliminate service contracts altogether. He writes:
Paragraph 4 of Section 2 specifies large-scale, capital-intensive, highly technological undertakings for

which the President may enter into contracts with foreign-owned corporations, and enunciates strict
conditions that should govern such contracts. x x x.
This provision balances the need for foreign capital and technology with the need to maintain the national
sovereignty. It recognizes the fact that as long as Filipinos can formulate their own terms in their own
territory, there is no danger of relinquishing sovereignty to foreign interests.
Are service contracts allowed under the new Constitution? No. Under the new Constitution, foreign
investors (fully alien-owned) can NOT participate in Filipino enterprises except to provide: (1) Technical
Assistance for highly technical enterprises; and (2) Financial Assistance for large-scale enterprises.
The intent of this provision, as well as other provisions on foreign investments, is to prevent the practice
(prevalent in the Marcos government) of skirting the 60/40 equation using the cover of service
contracts.241 [Emphasis supplied.]
Furthermore, it appears that Proposed Resolution No. 496,242 which was the draft Article on National
Economy and Patrimony, adopted the concept of "agreements . . . involving either technical or financial
assistance" contained in the "Draft of the 1986 U.P. Law Constitution Project" (U.P. Law draft) which was
taken into consideration during the deliberation of the CONCOM.243 The former, as well as Article XII, as
adopted, employed the same terminology, as the comparative table below shows:
DRAFT OF THE UP LAW PROPOSED RESOLUTION ARTICLE XII OF THE 1987
CONSTITUTION PROJECT NO. 496 OF THE CONSTITUTION
CONSTITUTIONAL
COMMISSION
Sec. 1. All lands of the public Sec. 3. All lands of the public Sec. 2. All lands of the public
domain, waters, minerals, domain, waters, minerals, domain, waters, minerals,
coal, petroleum and other coal, petroleum and other coal, petroleum, and other
mineral oils, all forces of mineral oils, all forces of mineral oils, all forces of
potential energy, fisheries, potential energy, fisheries, potential energy, fisheries,
flora and fauna and other forests, flora and fauna, and forests or timber, wildlife, flora
natural resources of the other natural resources are and fauna, and other natural
Philippines are owned by the owned by the State. With the resources are owned by the
State. With the exception of exception of agricultural lands, State. With the exception of
agricultural lands, all other all other natural resources agricultural lands, all other
natural resources shall not be shall not be alienated. The natural resources shall not be
alienated. The exploration, exploration, development, and alienated. The exploration,
development and utilization of utilization of natural resources development, and utilization of
natural resources shall be shall be under the full control natural resources shall be
under the full control and and supervision of the State. under the full control and
supervision of the State. Such Such activities may be directly supervision of the State. The
activities may be directly undertaken by the State, or it State may directly undertake
undertaken by the state, or it may enter into co-production, such activities or it may enter
may enter into co-production, joint venture, production- into co-production, joint
joint venture, production sharing agreements with venture, or production-sharing
sharing agreements with Filipino citizens or agreements with Filipino
Filipino citizens or corporations or associations at citizens, or corporations or
corporations or associations least sixty per cent of whose associations at least sixty per
sixty per cent of whose voting voting stock or controlling centum of whose capital is
stock or controlling interest is interest is owned by such owned by such citizens. Such
owned by such citizens for a citizens. Such agreements agreements may be for a
period of not more than shall be for a period of twenty- period not exceeding twenty-
twenty-five years, renewable five years, renewable for not five years, renewable for not
for not more than twenty-five more than twenty-five years, more than twenty-five years,
years and under such terms and under such term and and under such terms and
and conditions as may be conditions as may be provided conditions as may be provided
provided by law. In case as to by law. In cases of water by law. In case of water rights
water rights for irrigation, rights for irrigation, water for irrigation, water supply,
water supply, fisheries, or supply, fisheries or industrial fisheries, or industrial uses
industrial uses other than the uses other than the other than the development of
development of water power, development for water power, water power, beneficial use
beneficial use may be the beneficial use may be the may be the measure and limit
measure and limit of the grant. measure and limit of the grant. of the grant.
The National Assembly may The Congress may by law The State shall protect the
by law allow small scale allow small-scale utilization of nation's marine wealth in its
utilization of natural resources natural resources by Filipino archipelagic waters, territorial
by Filipino citizens. citizens, as well as sea, and exclusive economic
cooperative fish farming in zone, and reserve its use and
The National Assembly, may, rivers, lakes, bays, and enjoyment exclusively to
by two-thirds vote of all its
members by special law lagoons. Filipino citizens.
provide the terms and
conditions under which a The President with the The Congress may, by law,
foreign-owned corporation concurrence of Congress, by allow small-scale utilization of
may enter into agreements special law, shall provide the natural resources by Filipino
with the government terms and conditions under citizens, as well as
involving either technical or which a foreign-owned cooperative fish farming, with
financial assistance for corporation may enter into priority to subsistence
large-scale exploration, agreements with the fishermen and fish-workers in
development, or utilization of government involving either rivers, lakes, bays, and
natural resources. [Emphasis technical or financial lagoons.
supplied.] assistance for large-scale
exploration, development, and The President may enter into
utilization of natural resources. agreements with foreign-
[Emphasis supplied.] owned corporations
involving either technical or
financial assistance for
large-scale exploration,
development, and utilization of
minerals, petroleum, and other
mineral oils according to the
general terms and conditions
provided by law, based on real
contributions to the economic
growth and general welfare of
the country. In such
agreements, the State shall
promote the development and
use of local scientific and
technical resources.
[Emphasis supplied.]
The President shall notify the

Congress of every contract
entered into in accordance
with this provision, within thirty
days from its execution.
The insights of the proponents of the U.P. Law draft are, therefore, instructive in interpreting the phrase
"technical or financial assistance."
In his position paper entitled Service Contracts: Old Wine in New Bottles?, Professor Pacifico A. Agabin,
who was a member of the working group that prepared the U.P. Law draft, criticized service contracts for
they "lodge exclusive management and control of the enterprise to the service contractor, which is
reminiscent of the old concession regime. Thus, notwithstanding the provision of the Constitution that
natural resources belong to the State, and that these shall not be alienated, the service contract system
renders nugatory the constitutional provisions cited."244 He elaborates:
Looking at the Philippine model, we can discern the following vestiges of the concession regime, thus:
1. Bidding of a selected area, or leasing the choice of the area to the interested party and then
negotiating the terms and conditions of the contract; (Sec. 5, P.D. 87)
2. Management of the enterprise vested on the contractor, including operation of the field if
petroleum is discovered; (Sec. 8, P.D. 87)
3. Control of production and other matters such as expansion and development; (Sec. 8)
4. Responsibility for downstream operations – marketing, distribution, and processing may be

with the contractor (Sec. 8);
5. Ownership of equipment, machinery, fixed assets, and other properties remain with contractor
(Sec. 12, P.D. 87);
6. Repatriation of capital and retention of profits abroad guaranteed to the contractor (Sec. 13,
P.D. 87); and
7. While title to the petroleum discovered may nominally be in the name of the government, the
contractor has almost unfettered control over its disposition and sale, and even the domestic
requirements of the country is relegated to a pro rata basis (Sec. 8).
In short, our version of the service contract is just a rehash of the old concession regime x x x. Some
people have pulled an old rabbit out of a magician's hat, and foisted it upon us as a new and different
animal.
The service contract as we know it here is antithetical to the principle of sovereignty over our natural
resources restated in the same article of the [1973] Constitution containing the provision for service
contracts. If the service contractor happens to be a foreign corporation, the contract would also run
counter to the constitutional provision on nationalization or Filipinization, of the exploitation of our natural
resources.245 [Emphasis supplied. Underscoring in the original.]
Professor Merlin M. Magallona, also a member of the working group, was harsher in his reproach of the
system:
x x x the nationalistic phraseology of the 1935 [Constitution] was retained by the [1973] Charter, but the
essence of nationalism was reduced to hollow rhetoric. The 1973 Charter still provided that the
exploitation or development of the country's natural resources be limited to Filipino citizens or
corporations owned or controlled by them. However, the martial-law Constitution allowed them, once
these resources are in their name, to enter into service contracts with foreign investors for financial,
technical, management, or other forms of assistance. Since foreign investors have the capital resources,
the actual exploitation and development, as well as the effective disposition, of the country's natural
resources, would be under their direction, and control, relegating the Filipino investors to the role of
second-rate partners in joint ventures.
Through the instrumentality of the service contract, the 1973 Constitution had legitimized at the highest
level of state policy that which was prohibited under the 1973 Constitution, namely: the exploitation of the
country's natural resources by foreign nationals. The drastic impact of [this] constitutional change
becomes more pronounced when it is considered that the active party to any service contract may be a
corporation wholly owned by foreign interests. In such a case, the citizenship requirement is completely
set aside, permitting foreign corporations to obtain actual possession, control, and [enjoyment] of the
country's natural resources.246 [Emphasis supplied.]
Accordingly, Professor Agabin recommends that:

Recognizing the service contract for what it is, we have to expunge it from the Constitution and reaffirm
ownership over our natural resources. That is the only way we can exercise effective control over our
natural resources.
This should not mean complete isolation of the country's natural resources from foreign investment. Other
contract forms which are less derogatory to our sovereignty and control over natural resources – like
technical assistance agreements, financial assistance [agreements], co-production agreements, joint
ventures, production-sharing – could still be utilized and adopted without violating constitutional
provisions. In other words, we can adopt contract forms which recognize and assert our sovereignty and
ownership over natural resources, and where the foreign entity is just a pure contractor instead of the
beneficial owner of our economic resources.247 [Emphasis supplied.]
Still another member of the working group, Professor Eduardo Labitag, proposed that:
2. Service contracts as practiced under the 1973 Constitution should be discouraged, instead the
government may be allowed, subject to authorization by special law passed by an extraordinary majority
to enter into either technical or financial assistance. This is justified by the fact that as presently worded in
the 1973 Constitution, a service contract gives full control over the contract area to the service contractor,
for him to work, manage and dispose of the proceeds or production. It was a subterfuge to get around the
nationality requirement of the constitution.248[Emphasis supplied.]
In the annotations on the proposed Article on National Economy and Patrimony, the U.P. Law draft
summarized the rationale therefor, thus:
5. The last paragraph is a modification of the service contract provision found in Section 9, Article XIV of
the 1973 Constitution as amended. This 1973 provision shattered the framework of nationalism in our
fundamental law (see Magallona, "Nationalism and its Subversion in the Constitution"). Through the
service contract, the 1973 Constitution had legitimized that which was prohibited under the 1935
constitution—the exploitation of the country's natural resources by foreign nationals. Through the service
contract, acts prohibited by the Anti-Dummy Law were recognized as legitimate arrangements. Service
contracts lodge exclusive management and control of the enterprise to the service contractor, not unlike
the old concession regime where the concessionaire had complete control over the country's natural
resources, having been given exclusive and plenary rights to exploit a particular resource and, in effect,
having been assured of ownership of that resource at the point of extraction (see Agabin, "Service
Contracts: Old Wine in New Bottles"). Service contracts, hence, are antithetical to the principle of
sovereignty over our natural resources, as well as the constitutional provision on nationalization or
Filipinization of the exploitation of our natural resources.
Under the proposed provision, only technical assistance or financial assistance agreements may be
entered into, and only for large-scale activities. These are contract forms which recognize and assert our
sovereignty and ownership over natural resources since the foreign entity is just a pure contractor and not
a beneficial owner of our economic resources. The proposal recognizes the need for capital and
technology to develop our natural resources without sacrificing our sovereignty and control over such
resources by the safeguard of a special law which requires two-thirds vote of all the members of the
Legislature. This will ensure that such agreements will be debated upon exhaustively and thoroughly in
the National Assembly to avert prejudice to the nation.249 [Emphasis supplied.]
The U.P. Law draft proponents viewed service contracts under the 1973 Constitution as grants of
beneficial ownership of the country's natural resources to foreign owned corporations. While, in theory,
the State owns these natural resources – and Filipino citizens, their beneficiaries – service contracts
actually vested foreigners with the right to dispose, explore for, develop, exploit, and utilize the same.
Foreigners, not Filipinos, became the beneficiaries of Philippine natural resources. This arrangement is
clearly incompatible with the constitutional ideal of nationalization of natural resources, with the Regalian
doctrine, and on a broader perspective, with Philippine sovereignty.
The proponents nevertheless acknowledged the need for capital and technical know-how in the large-
scale exploitation, development and utilization of natural resources – the second paragraph of the
proposed draft itself being an admission of such scarcity. Hence, they recommended a compromise to
reconcile the nationalistic provisions dating back to the 1935 Constitution, which reserved all natural
resources exclusively to Filipinos, and the more liberal 1973 Constitution, which allowed foreigners to
participate in these resources through service contracts. Such a compromise called for the adoption of a
new system in the exploration, development, and utilization of natural resources in the form of technical
agreements or financial agreements which, necessarily, are distinct concepts from service contracts.
The replacement of "service contracts" with "agreements… involving either technical or financial
assistance," as well as the deletion of the phrase "management or other forms of assistance," assumes
greater significance when note is taken that the U.P. Law draft proposed other equally crucial changes
that were obviously heeded by the CONCOM. These include the abrogation of the concession system
and the adoption of new "options" for the State in the exploration, development, and utilization of natural
resources. The proponents deemed these changes to be more consistent with the State's ownership of,
and its "full control and supervision" (a phrase also employed by the framers) over, such resources. The
Project explained:
3. In line with the State ownership of natural resources, the State should take a more active role in the
exploration, development, and utilization of natural resources, than the present practice of granting
licenses, concessions, or leases – hence the provision that said activities shall be under the full control
and supervision of the State. There are three major schemes by which the State could undertake these
activities: first, directly by itself; second, by virtue of co-production, joint venture, production sharing
agreements with Filipino citizens or corporations or associations sixty per cent (60%) of the voting stock
or controlling interests of which are owned by such citizens; or third, with a foreign-owned corporation, in
cases of large-scale exploration, development, or utilization of natural resources through agreements
involving either technical or financial assistance only. x x x.
At present, under the licensing concession or lease schemes, the government benefits from such benefits
only through fees, charges, ad valorem taxes and income taxes of the exploiters of our natural resources.
Such benefits are very minimal compared with the enormous profits reaped by theses licensees,
grantees, concessionaires. Moreover, some of them disregard the conservation of natural resources and
do not protect the environment from degradation. The proposed role of the State will enable it to a greater
share in the profits – it can also actively husband its natural resources and engage in developmental
programs that will be beneficial to them.
4. Aside from the three major schemes for the exploration, development, and utilization of our natural
resources, the State may, by law, allow Filipino citizens to explore, develop, utilize natural resources in
small-scale. This is in recognition of the plight of marginal fishermen, forest dwellers, gold panners, and
others similarly situated who exploit our natural resources for their daily sustenance and survival. 250
Professor Agabin, in particular, after taking pains to illustrate the similarities between the two systems,
concluded that the service contract regime was but a "rehash" of the concession system. "Old wine in
new bottles," as he put it. The rejection of the service contract regime, therefore, is in consonance with
the abolition of the concession system.
In light of the deliberations of the CONCOM, the text of the Constitution, and the adoption of other
proposed changes, there is no doubt that the framers considered and shared the intent of the U.P. Law
proponents in employing the phrase "agreements . . . involving either technical or financial assistance."
While certain commissioners may have mentioned the term "service contracts" during the CONCOM
deliberations, they may not have been necessarily referring to the concept of service contracts under the
1973 Constitution. As noted earlier, "service contracts" is a term that assumes different meanings to
different people.251 The commissioners may have been using the term loosely, and not in its technical and
legal sense, to refer, in general, to agreements concerning natural resources entered into by the
Government with foreign corporations. These loose statements do not necessarily translate to the
adoption of the 1973 Constitution provision allowing service contracts.
It is true that, as shown in the earlier quoted portions of the proceedings in CONCOM, in response to Sr.
Tan's question, Commissioner Villegas commented that, other than congressional notification, the only
difference between "future" and "past" "service contracts" is the requirement of a general law as there
were no laws previously authorizing the same.252 However, such remark is far outweighed by his more
categorical statement in his exchange with Commissioner Quesada that the draft article "does not permit
foreign investors to participate" in the nation's natural resources – which was exactly what service
contracts did – except to provide "technical or financial assistance."253
In the case of the other commissioners, Commissioner Nolledo himself clarified in his work that the
present charter prohibits service contracts.254 Commissioner Gascon was not totally averse to foreign
participation, but favored stricter restrictions in the form of majority congressional concurrence. 255 On the
other hand, Commissioners Garcia and Tadeo may have veered to the extreme side of the spectrum and
their objections may be interpreted as votes against any foreign participation in our natural resources
whatsoever.
WMCP cites Opinion No. 75, s. 1987,256 and Opinion No. 175, s. 1990257 of the Secretary of Justice,
expressing the view that a financial or technical assistance agreement "is no different in concept" from the
service contract allowed under the 1973 Constitution. This Court is not, however, bound by this
interpretation. When an administrative or executive agency renders an opinion or issues a statement of
policy, it merely interprets a pre-existing law; and the administrative interpretation of the law is at best
advisory, for it is the courts that finally determine what the law means.258
In any case, the constitutional provision allowing the President to enter into FTAAs with foreign-owned
corporations is an exception to the rule that participation in the nation's natural resources is reserved
exclusively to Filipinos. Accordingly, such provision must be construed strictly against their enjoyment by
non-Filipinos. As Commissioner Villegas emphasized, the provision is "very restrictive." 259 Commissioner
Nolledo also remarked that "entering into service contracts is an exception to the rule on protection of
natural resources for the interest of the nation and, therefore, being an exception, it should be subject,
whenever possible, to stringent rules."260 Indeed, exceptions should be strictly but reasonably construed;
they extend only so far as their language fairly warrants and all doubts should be resolved in favor of the
general provision rather than the exception.261
With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid insofar as said Act
authorizes service contracts. Although the statute employs the phrase "financial and technical
agreements" in accordance with the 1987 Constitution, it actually treats these agreements as service
contracts that grant beneficial ownership to foreign contractors contrary to the fundamental law.
Section 33, which is found under Chapter VI (Financial or Technical Assistance Agreement) of R.A. No.
7942 states:
SEC. 33. Eligibility.—Any qualified person with technical and financial capability to undertake large-scale
exploration, development, and utilization of mineral resources in the Philippines may enter into a financial
or technical assistance agreement directly with the Government through the Department. [Emphasis
supplied.]
"Exploration," as defined by R.A. No. 7942,
means the searching or prospecting for mineral resources by geological, geochemical or geophysical
surveys, remote sensing, test pitting, trending, drilling, shaft sinking, tunneling or any other means for the
purpose of determining the existence, extent, quantity and quality thereof and the feasibility of mining
them for profit.262
A legally organized foreign-owned corporation may be granted an exploration permit, 263 which vests it
with the right to conduct exploration for all minerals in specified areas,264 i.e., to enter, occupy and explore
the same.265Eventually, the foreign-owned corporation, as such permittee, may apply for a financial and
technical assistance agreement.266
"Development" is the work undertaken to explore and prepare an ore body or a mineral deposit for
mining, including the construction of necessary infrastructure and related facilities. 267
"Utilization" "means the extraction or disposition of minerals." 268 A stipulation that the proponent shall
dispose of the minerals and byproducts produced at the highest price and more advantageous terms and
conditions as provided for under the implementing rules and regulations is required to be incorporated in
every FTAA.269
A foreign-owned/-controlled corporation may likewise be granted a mineral processing permit.270 "Mineral

processing" is the milling, beneficiation or upgrading of ores or minerals and rocks or by similar means to
convert the same into marketable products.271
An FTAA contractor makes a warranty that the mining operations shall be conducted in accordance with
the provisions of R.A. No. 7942 and its implementing rules 272 and for work programs and minimum
expenditures and commitments.273 And it obliges itself to furnish the Government records of geologic,
accounting, and other relevant data for its mining operation.274
"Mining operation," as the law defines it, means mining activities involving exploration, feasibility,
development, utilization, and processing.275
The underlying assumption in all these provisions is that the foreign contractor manages the mineral
resources, just like the foreign contractor in a service contract.
Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the same auxiliary mining rights
that it grants contractors in mineral agreements (MPSA, CA and JV).276 Parenthetically, Sections 72 to 75
use the term "contractor," without distinguishing between FTAA and mineral agreement contractors. And
so does "holders of mining rights" in Section 76. A foreign contractor may even convert its FTAA into a
mineral agreement if the economic viability of the contract area is found to be inadequate to justify large-
scale mining operations,277 provided that it reduces its equity in the corporation, partnership, association
or cooperative to forty percent (40%).278
Finally, under the Act, an FTAA contractor warrants that it "has or has access to all the financing,
managerial, and technical expertise. . . ."279 This suggests that an FTAA contractor is bound to provide
some management assistance – a form of assistance that has been eliminated and, therefore, proscribed
by the present Charter.
By allowing foreign contractors to manage or operate all the aspects of the mining operation, the above-
cited provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nation's mineral
resources to these contractors, leaving the State with nothing but bare title thereto.
Moreover, the same provisions, whether by design or inadvertence, permit a circumvention of the
constitutionally ordained 60%-40% capitalization requirement for corporations or associations engaged in
the exploitation, development and utilization of Philippine natural resources.
In sum, the Court finds the following provisions of R.A. No. 7942 to be violative of Section 2, Article XII of
the Constitution:
(1) The proviso in Section 3 (aq), which defines "qualified person," to wit:
Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person
for purposes of granting an exploration permit, financial or technical assistance agreement or
mineral processing permit.
(2) Section 23,280 which specifies the rights and obligations of an exploration permittee, insofar as
said section applies to a financial or technical assistance agreement,
(3) Section 33, which prescribes the eligibility of a contractor in a financial or technical assistance
agreement;
(4) Section 35,281 which enumerates the terms and conditions for every financial or technical
assistance agreement;
(5) Section 39,282 which allows the contractor in a financial and technical assistance agreement to
convert the same into a mineral production-sharing agreement;
(6) Section 56,283 which authorizes the issuance of a mineral processing permit to a contractor in
a financial and technical assistance agreement;
The following provisions of the same Act are likewise void as they are dependent on the foregoing
provisions and cannot stand on their own:
(1) Section 3 (g),284 which defines the term "contractor," insofar as it applies to a financial or
technical assistance agreement.
Section 34,285 which prescribes the maximum contract area in a financial or technical assistance
agreements;
Section 36,286 which allows negotiations for financial or technical assistance agreements;
Section 37,287 which prescribes the procedure for filing and evaluation of financial or technical
assistance agreement proposals;
Section 38,288 which limits the term of financial or technical assistance agreements;
Section 40,289 which allows the assignment or transfer of financial or technical assistance
agreements;
Section 41,290 which allows the withdrawal of the contractor in an FTAA;
The second and third paragraphs of Section 81,291 which provide for the Government's share in a
financial and technical assistance agreement; and
Section 90,292 which provides for incentives to contractors in FTAAs insofar as it applies to said
contractors;
When the parts of the statute are so mutually dependent and connected as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief that the legislature intended them
as a whole, and that if all could not be carried into effect, the legislature would not pass the residue
independently, then, if some parts are unconstitutional, all the provisions which are thus dependent,
conditional, or connected, must fall with them.293
There can be little doubt that the WMCP FTAA itself is a service contract.
Section 1.3 of the WMCP FTAA grants WMCP "the exclusive right to explore, exploit, utilise[,] process
and dispose of all Minerals products and by-products thereof that may be produced from the Contract
Area."294 The FTAA also imbues WMCP with the following rights:
(b) to extract and carry away any Mineral samples from the Contract area for the purpose of
conducting tests and studies in respect thereof;
(c) to determine the mining and treatment processes to be utilised during the
Development/Operating Period and the project facilities to be constructed during the
Development and Construction Period;
(d) have the right of possession of the Contract Area, with full right of ingress and egress and the
right to occupy the same, subject to the provisions of Presidential Decree No. 512 (if applicable)
and not be prevented from entry into private ands by surface owners and/or occupants thereof
when prospecting, exploring and exploiting for minerals therein;
xxx
(f) to construct roadways, mining, drainage, power generation and transmission facilities and all
other types of works on the Contract Area;
(g) to erect, install or place any type of improvements, supplies, machinery and other equipment
relating to the Mining Operations and to use, sell or otherwise dispose of, modify, remove or
diminish any and all parts thereof;
(h) enjoy, subject to pertinent laws, rules and regulations and the rights of third Parties, easement
rights and the use of timber, sand, clay, stone, water and other natural resources in the Contract
Area without cost for the purposes of the Mining Operations;
xxx
(i) have the right to mortgage, charge or encumber all or part of its interest and obligations under
this Agreement, the plant, equipment and infrastructure and the Minerals produced from the
Mining Operations;
x x x. 295
All materials, equipment, plant and other installations erected or placed on the Contract Area remain the
property of WMCP, which has the right to deal with and remove such items within twelve months from the
termination of the FTAA.296
Pursuant to Section 1.2 of the FTAA, WMCP shall provide "[all] financing, technology, management and
personnel necessary for the Mining Operations." The mining company binds itself to "perform all Mining
Operations . . . providing all necessary services, technology and financing in connection therewith," 297 and
to "furnish all materials, labour, equipment and other installations that may be required for carrying on all
Mining Operations."298> WMCP may make expansions, improvements and replacements of the mining
facilities and may add such new facilities as it considers necessary for the mining operations.299
These contractual stipulations, taken together, grant WMCP beneficial ownership over natural resources
that properly belong to the State and are intended for the benefit of its citizens. These stipulations are
abhorrent to the 1987 Constitution. They are precisely the vices that the fundamental law seeks to avoid,
the evils that it aims to suppress. Consequently, the contract from which they spring must be struck down.
In arguing against the annulment of the FTAA, WMCP invokes the Agreement on the Promotion and
Protection of Investments between the Philippine and Australian Governments, which was signed in
Manila on January 25, 1995 and which entered into force on December 8, 1995.
x x x. Article 2 (1) of said treaty states that it applies to investments whenever made and thus the fact that
[WMCP's] FTAA was entered into prior to the entry into force of the treaty does not preclude the
Philippine Government from protecting [WMCP's] investment in [that] FTAA. Likewise, Article 3 (1) of the
treaty provides that "Each Party shall encourage and promote investments in its area by investors of the
other Party and shall [admit] such investments in accordance with its Constitution, Laws, regulations and
investment policies" and in Article 3 (2), it states that "Each Party shall ensure that investments are
accorded fair and equitable treatment." The latter stipulation indicates that it was intended to impose an
obligation upon a Party to afford fair and equitable treatment to the investments of the other Party and
that a failure to provide such treatment by or under the laws of the Party may constitute a breach of the
treaty. Simply stated, the Philippines could not, under said treaty, rely upon the inadequacies of its own
laws to deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating
[WMCP's] FTAA without likewise nullifying the service contracts entered into before the enactment of RA
7942 such as those mentioned in PD 87 or EO 279.
This becomes more significant in the light of the fact that [WMCP's] FTAA was executed not by a mere
Filipino citizen, but by the Philippine Government itself, through its President no less, which, in entering
into said treaty is assumed to be aware of the existing Philippine laws on service contracts over the
exploration, development and utilization of natural resources. The execution of the FTAA by the Philippine
Government assures the Australian Government that the FTAA is in accordance with existing Philippine
laws.300 [Emphasis and italics by private respondents.]
The invalidation of the subject FTAA, it is argued, would constitute a breach of said treaty which, in turn,
would amount to a violation of Section 3, Article II of the Constitution adopting the generally accepted
principles of international law as part of the law of the land. One of these generally accepted principles is
pacta sunt servanda, which requires the performance in good faith of treaty obligations.
Even assuming arguendo that WMCP is correct in its interpretation of the treaty and its assertion that "the
Philippines could not . . . deprive an Australian investor (like [WMCP]) of fair and equitable treatment by
invalidating [WMCP's] FTAA without likewise nullifying the service contracts entered into before the
enactment of RA 7942 . . .," the annulment of the FTAA would not constitute a breach of the treaty
invoked. For this decision herein invalidating the subject FTAA forms part of the legal system of the
Philippines.301 The equal protection clause302 guarantees that such decision shall apply to all contracts
belonging to the same class, hence, upholding rather than violating, the "fair and equitable treatment"
stipulation in said treaty.
One other matter requires clarification. Petitioners contend that, consistent with the provisions of Section
2, Article XII of the Constitution, the President may enter into agreements involving "either technical or
financial assistance" only. The agreement in question, however, is a technical and financial assistance
agreement.
Petitioners' contention does not lie. To adhere to the literal language of the Constitution would lead to
absurd consequences.303 As WMCP correctly put it:
x x x such a theory of petitioners would compel the government (through the President) to enter into
contract with two (2) foreign-owned corporations, one for financial assistance agreement and with the
other, for technical assistance over one and the same mining area or land; or to execute two (2) contracts
with only one foreign-owned corporation which has the capability to provide both financial and technical
assistance, one for financial assistance and another for technical assistance, over the same mining area.
Such an absurd result is definitely not sanctioned under the canons of constitutional
construction.304 [Underscoring in the original.]
Surely, the framers of the 1987 Charter did not contemplate such an absurd result from their use of
"either/or." A constitution is not to be interpreted as demanding the impossible or the impracticable; and
unreasonable or absurd consequences, if possible, should be avoided. 305 Courts are not to give words a
meaning that would lead to absurd or unreasonable consequences and a literal interpretation is to be
rejected if it would be unjust or lead to absurd results.306 That is a strong argument against its
adoption.307 Accordingly, petitioners' interpretation must be rejected.
The foregoing discussion has rendered unnecessary the resolution of the other issues raised by the
petition.
WHEREFORE, the petition is GRANTED. The Court hereby declares unconstitutional and void:
(1) The following provisions of Republic Act No. 7942:
(a) The proviso in Section 3 (aq),
(b) Section 23,
(c) Section 33 to 41,
(d) Section 56,
(e) The second and third paragraphs of Section 81, and
(f) Section 90.
(2) All provisions of Department of Environment and Natural Resources Administrative Order 96-
40, s. 1996 which are not in conformity with this Decision, and
(3) The Financial and Technical Assistance Agreement between the Government of the Republic
of the Philippines and WMC Philippines, Inc.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Carpio, Corona, Callejo, Sr., and Tinga. JJ., concur.
Vitug, J., see Separate Opinion.
Panganiban, J., see Separate Opinion.
Ynares-Santiago, Sandoval-Gutierrez and Austria-Martinez, JJ., joins J., Panganiban's separate opinion.
Azcuna, no part, one of the parties was a client.
SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,

vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND
GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET,
respondents, COMMISSION ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition,
the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and
professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the
functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo
Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's
salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of
Customs is unconstitutional by reason of its not having been confirmed by the Commission on
Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's
appointment without the confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service, the Court
resolved to give due course to the petition and decide, setting aside the finer procedural questions of
whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of
the Bureau of Customs and of whether the petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments to
intervene and file a petition in intervention. Comment was required of respondents on said petition. The
comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument
on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2)
great departments of government, the Executive and Legislative Departments. It also occurs early in the
life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution.
In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad
Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent of

the framers of the organic law and of the people adopting it. The intention to which force
is to be given is that which is embodied and expressed in the constitutional provisions
themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they say
and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution. He shall also
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. The
Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies,
commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next adjournment
of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4)
groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter
refer from time to time, are:
First, 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 him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the
President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they be
appointed by the President with or without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it would follow that only those appointments to
positions expressly stated in the first group require the consent (confirmation) of the Commission on
Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to
historical background as well as to the records of the 1986 Constitutional Commission to determine, with
more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people
adopting it, on whether the appointments by the President, under the second, third and fourth groups,
require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following
advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision must be
presumed to have been framed and adopted in the light and understanding of prior and
existing laws and with reference to them. "Courts are bound to presume that the people
adopting a constitution are familiar with the previous and existing laws upon the subjects
to which its provisions relate, and upon which they express their judgment and opinion in
its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the Government whose appointments are
not herein otherwise provided for, and those whom he may be authorized by law to
appoint; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments.
(4) The President shall havethe power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus and offices, the officers of
the Armed Forces of the Philippines from the rank of Brigadier General or Commodore,
and all other officers of The government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law to appoint. However, the
Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the
Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power
to appoint inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of
the Commission on Appointments. It is now a sad part of our political history that the power of
confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that
commission, many times, into a venue of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded
and remolded by successive amendments, placed the absolute power of appointment in the President
with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it
is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it,
struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for
the first group of appointments and leaving to the President, without such confirmation, the appointment
of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e.,
officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of
Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional
Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on
Appointment, shall appoint the heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain and 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. The Congress may by law vest the appointment of inferior
officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis
supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the
frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling
was manifestly expressed to make the power of the Commission on Appointments over presidential
appointments more limited than that held by the Commission in the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a few
minutes of our time to lay the basis for some of the amendments that I
would like to propose to the Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so on but
not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed and
approved by the Commission. These were (1) the exclusion of the appointments of heads of
bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion
of appointments made under the second sentence 9 of the section from the same requirement. The
records of the deliberations of the Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page 7,

Section 16, line 26 which is to delete the words "and bureaus," and on
line 28 of the same page, to change the phrase 'colonel or naval captain
to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which
is co-authored by Commissioner de Castro is to put a period (.) after the
word ADMIRAL, and on line 29 of the same page, start a new sentence
with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first
proposed amendment is to delete the words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what

would be the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the
executive department, and to require further confirmation of presidential
appointment of heads of bureaus would subject them to political
influence.
MR. REGALADO: The Commissioner's proposed amendment by
deletion also includes regional directors as distinguished from merely
staff directors, because the regional directors have quite a plenitude of
powers within the regions as distinguished from staff directors who only
stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn of
the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz? The

Commissioner proposed an amendment to delete 'and bureaus on
Section 16. Who will then appoint the bureau directors if it is not the
President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of

Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the

Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this

matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will first
vote on the deletion of the phrase 'and bureaus on line 26, such that
appointments of bureau directors no longer need confirmation by the
Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the consent of
a Commission on Appointments, shall appoint the heads of the executive departments,
ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase 'and

bureaus' on page 7, line 26? (Silence) The Chair hears none; the
amendments is approved.
xxx xxx xxx

MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment on

page 7, line 28. 1 propose to put a period (.) after 'captain' and on line
29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT
ANY.
MR. REGALADO: Madam President, the Committee accepts the

proposed amendment because it makes it clear that those other officers
mentioned therein do not have to be confirmed by the Commission on
Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his

amendment, so that after "captain" we insert the following words: AND
OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the
Constitution whose appointments are vested in the President, as a
matter of fact like those of the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16 is

not an exclusive list of those appointments which constitutionally require
confirmation of the Commission on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words I
proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed

amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS
WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE

APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes those
officers which the Constitution does not require confirmation by the
Commission on Appointments, like the members of the judiciary and the
Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification
made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of

Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed amendment of

Commissioners Foz and Davide as accepted by the Committee?
(Silence) The Chair hears none; the amendment, as amended, is
approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can be
made by the President without the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of
Sec. 16, Article VII reading-
He (the President) shall also 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 . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint the
officers mentioned in said second sentence. In other words, the President shall appoint the officers
mentioned in said second sentence in the same manner as he appoints officers mentioned in the first
sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the
conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as
well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the
contrary, stress that the word "also" in said second sentence means that the President, in addition to
nominating and, with the consent of the Commission on Appointments, appointing the officers
enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned
in the second sentence-
Rather than limit the area of consideration to the possible meanings of the word "also" as used in the
context of said second sentence, the Court has chosen to derive significance from the fact that the first
sentence speaks of nomination by the President and appointment by the President with the consent of
the Commission on Appointments, whereas, the second sentence speaks only of appointment by the
President. And, this use of different language in two (2) sentences proximate to each other underscores a
difference in message conveyed and perceptions established, in line with Judge Learned Hand's
observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded
proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers
whose appointments require no confirmation of the Commission on Appointments, even if such officers
may be higher in rank, compared to some officers whose appointments have to be confirmed by the
Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate,
the appointment of the Central Bank Governor requires no confirmation by the Commission on
Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a
consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate
judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments
require the consent of the Commission on Appointments by express mandate of the first sentence in Sec.
16, Art. VII, appointments of other officers are left to the President without need of confirmation by the
Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the
framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable
effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or

qualifications of such power should be strictly construed against them. Such limitations or qualifications
must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII
where it is clearly stated that appointments by the President to the positions therein enumerated require
the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on
Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so,
as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the President,
subject also to confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted,
merely declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the
President, in the courts, or in the heads of the various departments, agencies, commissions, or boards in
the government. No reason however is submitted for the use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the
deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word
"President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in
draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end
of par. 3, section 1 0, Article VII thereof —
...; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes
practically all presidential appointments subject to confirmation by the Commission on Appointments,
thus-
3. The President shall nominate and with the consent of the Commission on
officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the Government whose appointments are
not herein provided for, and those whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to
confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior
officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President
alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers
was to exclude presidential appointments from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently,
there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word
"President" in providing that Congress may by law vest the appointment of lower-ranked officers in the
President alone, or in the courts, or in the heads of departments, because the power to appoint officers
whom he (the President) may be authorized by law to appoint is already vested in the President, without
need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16,
Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-
ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the
heads of various departments of the government. In short, the word "alone" in the third sentence of Sec.
16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII
of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article
VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987
Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16,
Article VII, are not subject to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of Commissioner of
the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where
the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out,
while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need
the consent of the Commission on Appointments, the 1987 Constitution on the other hand, deliberately
excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of
the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of
Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and
Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June
1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one
assistant chief, to be known respectively as the Commissioner (hereinafter known as the
'Commissioner') and Assistant Commissioner of Customs, who shall each receive an
annual compensation in accordance with the rates prescribed by existing laws. The
Assistant Commissioner of Customs shall be appointed by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34,
amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as
follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have
one chief and one assistant chief, to be known respectively as the Commissioner
(hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall
each receive an annual compensation in accordance with the rates prescribed by existing
law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by
the President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the
1935 Constitution, under which the President may nominate and, with the consent of the Commission on
Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read
in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the
Bureau of Customs is one that devolves on the President, as an appointment he is authorizedby law to
make, such appointment, however, no longer needs the confirmation of the Commission on
Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional authority and
power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without
submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to
exercise the full authority and functions of the office and to receive all the salaries and emoluments
pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED.
Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the
Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in the
test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of
December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the
Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the
President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the
basis of the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor
clearly has no bearing on and cannot affect retroactively the validity of the direct appointment of
respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon.
Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract and
without the same being properly raised before it in a justiciable case and after thorough discussion of the
various points of view that would enable it to render judgment after mature deliberation. As stressed at
the hearing of December 8, 1987, any discussion of the reported bill and its validity or invalidity is
premature and irrelevant and outside the scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to
add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution.
He shall also 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.
of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "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. Deliberately eliminated was any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the
fact that the term "appoint" used in said sentence was not meant to include the three distinct acts in the
appointing process, namely, nomination, appointment, and commission. For if that were the intent, the
same terminologies in the first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in the
1935 Constitution, which required that all presidential appointments be with the consent of the
The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in
the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of
constitutional construction is to ascertain the intent of the framers of the Constitution and thereafter to
assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February
18, 1970, 31 SCRA 413). And the primary source from which to ascertain constitutional intent is the
language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior
Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Constitution. He shall also appoint all other officers of the Government whose
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence are
required to undergo a consenting process. This is a significant departure from the procedure set forth in
the 1935 Charter:
captain to commander, and all other officers of the Government whose appointments are
President alone, in the courts, or in the heads of departments. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may make:
(1) appointments of heads of executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and those of other officers whose
appointments are vested in him under the Constitution, including the regular members of the Judicial and
Bar Council, 5 the Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and
Commissioners of the Commission on Elections, 7 and the Chairman and Commissioners of the
Commission on Audit; 8 (2) those officers whose appointments are not otherwise provided for by law; (3)
those whom he may be authorized by law to appoint; and (4) officers lower in rank whose appointments
the Congress may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a
"rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a
certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary
of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That
is a question addressed to the electorate, and who, despite those "eccentricities," have stamped their
approval on that Charter. "The Court," avers the majority, "will thus construe the applicable constitutional
provisions, not in accordance with how the executive or the legislative department may want them
construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not
minimize the extent of such a power, much less, make it a shared executive-legislative prerogative.
In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,
underscored the fact that while the legislature may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it
cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event,
it is as if it is the legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his
supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of the
appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the government
has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no
power is absolutely separate from the other. For republicanism operates on a process of checks and
balances as well, not only to guard against excesses by one branch, but more importantly, "to secure
coordination in the workings of the various departments of the government." 15 Viewed in that light, the
Commission on Appointments acts as a restraint against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson
as the majority notes, in our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for
instance, against the enactment of a bill of attainder operates as a bar against legislative encroachment
upon both judicial and executive domains, since the determination of guilt and punishment of the guilty
address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In
a very real sense, the power of appointment constitutes a check against legislative authority. In Springer
v. Philippine Islands, 17we are told that "Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one
authority, because "the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks
to preserve an executive check upon legislative authority in the interest of avoiding an undue
concentration of power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and whose members have been
determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is
the concern of the President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that
"the power of removal . . . [is] incident to the power of appointment, 23 although this has since been
tempered in a subsequent case, 24 where it was held that the President may remove only "purely
executive officers, 25 that is, officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held
that the President may remove incumbents of offices confidential in nature, but we likewise made clear
that in such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his
term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred
by the predominance of checks and counterchecks, yet amid such a rubble of competing powers
emerges a structure whose parts are at times jealous of each other, but which are ultimately necessary in
assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ... When we come to the fundamental
distinctions it is still more obvious that they must be received with a certain latitude or our
government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight compartments,
were it ever so desirable to do so, which I am far from believing that it is, or that the
Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton
might readily have recognized as suggestive of the mechanism of the heavens," (W.
Wilson, Constitutional Government in the United States 56 (1908)] can represent only the
scaffolding of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be
regarded as a mere legal document, to be read as a will or a contract would be. It must,
of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less
rich, Woodrow Wilson once warned, "is that government is not a machine, but a living
thing. It falls, not under the theory of the universe, but under the theory of organic life. It is
accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer
pressure of life. No living thing can have its organs offset against each other as checks,
and five." (Id. at 56.) Yet because no complex society can have its centers of power not
"offset against each other as checks," and resist tyranny, the Model of Separated and
Divided Powers offers continuing testimony to the undying dilemmas of progress and
justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the
legislature (the National Assembly under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and
Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the presiding officer of
most of its plenary session, I am aware that the Convention did not provide for a commission on
appointments on the theory that the Prime Minister, the head of the Government and the sole appointing
power, was himself a member of parliament. For this reason, there was no necessity for a separate body
to scrutinize his appointees. But should such appointees forfeit the confidence of the assembly, they are,
by tradition, required to resign, unless they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening
events forestalled our parliamentary experiment, and beginning with the 1976 amendments and some
140 or so amendments thereafter, we had reverted to the presidential form, 32 without provisions for a
commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the
present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere
safeguard against abuse with respect to those appointments. It does not accord Congress any more than
the power to check, but not to deny, the Chief Executive's appointing power or to supplant his appointees
with its own. It is but an exception to the rule. In limiting the Commission's scope of authority, compared
to that under the 1935 Constitution, I believe that the 1987 Constitution has simply recognized the reality
of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land,
should never have any of its provisions interpreted in a manner that results in absurd or irrational
consequences.
The Commission on Appointments is an important constitutional body which helps give fuller expression
to the principles inherent in our presidential system of government. Its functions cannot be made
innocuous or unreasonably diminished to the confirmation of a limited number of appointees. In the same
manner that the President shares in the enactment of laws which govern the nation, the legislature,
through its Commission on Appointments, gives assurance that only those who can pass the scrutiny of
both the President and Congress will help run the country as officers holding high appointive positions.
The third sentence of the first paragraph — " ... The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards." — specifies only "officers lower in rank" as those who may, by law, be
appointed by the President alone. If as expounded in the majority opinion, only the limited number of
officers in the first sentence of Section 16 require confirmation, the clear intent of the third sentence is
lost. In fact both the second and third sentences become meaningless or superfluous. Superfluity is not to
be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read together.
In providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9,
Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of
cabinet (Section 3, Article VII) and, of course, those who by law the President alone may appoint, the
Constitution clearly provides no need for confirmation. This can only mean that all other appointments
need confirmation. Where there is no need for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares. Without such a declaration, there must be
confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the interpretation
which Justice Cruz and myself espouse, is more democratic and more in keeping with the system of
government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is
required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the
executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed
forces from the rank of colonel or naval captain; and (4) other officers whose appointments are vested in
the President in the Constitution. No confirmation is required under the second sentence for (1) all other
officers whose appointments are not otherwise provided for by law, and (2) those whom the President
may be authorized by law to appoint. Neither is confirmation required by the third sentence for those other
officers lower in rank whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department,
does not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is
under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman
of the Commission on Human Rights, which was created by the Constitution; yet the former is subject to
confirmation but the latter is not because he does not come under the first sentence. The Special
Prosecutor, whose appointment is not vested by the Constitution in the President, is not subject to
confirmation under the first sentence, and neither are the Governor of the Central Bank and the members
of the Monetary Board because they fall under the second sentence as interpreted by the majority
opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose
appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation
is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence of
Section 16, but that is not the provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us. Significantly, although there was a long
discussion of the first sentence in the Constitutional Commission, there is none cited on the second
sentence either in the Solicitor-General's comment or in the majority opinion. We can therefore only
speculate on the correct interpretation of this provision in the light of the first and third sentences of
Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds that
the two sets of officers specified therein may be appointed by the President without the concurrence of
the Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous
results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the majority
opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the
basis of expressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient
by itself to convey the Idea that all other appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was
still felt necessary to provide in the third sentence that the appointment of the other officers lower in rank
will also not need confirmation as long as their appointment is vested by law in the President alone. The
third sentence would appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably to the
language thereof, these lower officers will need the confirmation of the Commission on Appointments
while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than
the bureau director, will have to be confirmed if the Congress does not vest their appointment in the
President alone under the third sentence. On the other hand, their superior, the bureau director himself,
will not need to be confirmed because, according to the majority opinion, he falls not under the first
sentence but the second. This is carefulness in reverse, like checking the bridesmaids but forgetting the
bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the
powers of the Presidency and so prevent the recurrence of another dictatorship. Among the many
measures taken was the restoration of the Commission on Appointments to check the appointing power
which had been much abused by President Marcos. We are now told that even as this body was revived
to limit appointments, the scope of its original authority has itself been limited in the new Constitution. I
have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject to
confirmation. The second sentence is the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I repeat that there were no debates on
this matter as far as I know, which simply means that my humble conjecture on the meaning of Section 16
is as arguable, at least, as the suppositions of the majority. We read and rely on the same records. At any
rate, this view is more consistent with the general purpose of Article VII, which, to repeat, was to reduce
the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on

page 7, line 28, 1 propose to put a period (.) after 'captain' and on line
ANY.
Mr. Regalado: Madam President, the Committee accepts the proposed

amendment because it makes it clear that those other officers mentioned
therein do not have to be confirmed by the Commission on
Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was
referring to, and a reading in its entirety of this particular debate will suggest that the body was
considering the first sentence of the said section, which I reiterate is not the controversial provision. In
any case, although the excerpt shows that the proposed amendment of Commissioner Foz was accepted
by the committee, it is not reflected, curiously enough, in the final version of Section 16 as a perusal
thereof will readily reveal. Whether it was deleted later in the session or reworded by the style committee
or otherwise replaced for whatever reason will need another surmise on this rather confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at
best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the
Congress is not prevented from adding to the list of officers subject to confirmation by the Commission on
Appointments and cite the debates on this matter in support of this supposition. It is true enough that
there was such a consensus, but it is equally true that this thinking is not at all expressed, or even only
implied, in the language of Section 16 of Article VII. Which should prevail then the provision as worded or
the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either that
it is not absolute or unlimited. The rule re- established by the new Constitution is that the power requires
confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the
system of checks and balances. I submit it is the exception to this rule, and not the rule, that should be
strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the
Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is vested
by law in the President alone. It is clear that this enumeration does not include the respondent
Commissioner of Customs who, while not covered by the first sentence of Section 16, comes under the
second sentence thereof as I would interpret it and so is also subject to confirmation.
I vote to grant the petition.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the
Commission on Appointments and securing its confirmation) is valid and in accordance with the
President's constitutional authority to so appoint officers of the Government as defined in Article VII,
section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such appointments be resolved expeditiously in the
test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of
December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the
Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the
President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the
basis of the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor
clearly has no bearing on and cannot affect retroactively the validity of the direct appointment of
respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon.
Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract and
without the same being properly raised before it in a justiciable case and after thorough discussion of the
various points of view that would enable it to render judgment after mature deliberation. As stressed at
the hearing of December 8, 1987, any discussion of the reported bill and its validity or invalidity is
premature and irrelevant and outside the scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to
add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent of the Commission on
Constitution.
He shall also 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.
of the Congress (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President
"nominates" and with the consent of the Commission on Appointments "appoints" the officials
enumerated. The second sentence, however, significantly uses only the term "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. Deliberately eliminated was any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second
sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the
fact that the term "appoint" used in said sentence was not meant to include the three distinct acts in the
appointing process, namely, nomination, appointment, and commission. For if that were the intent, the
same terminologies in the first sentence could have been easily employed.
There should be no question either that the participation of the Commission on Appointments in the
appointment process has been deliberately decreased in the 1987 Constitution compared to that in the
1935 Constitution, which required that all presidential appointments be with the consent of the
The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in
the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of
constitutional construction is to ascertain the intent of the framers of the Constitution and thereafter to
assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February
18, 1970, 31 SCRA 413). And the primary source from which to ascertain constitutional intent is the
language of the Constitution itself.
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior
Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Constitution. He shall also appoint all other officers of the Government whose
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first sentence are
required to undergo a consenting process. This is a significant departure from the procedure set forth in
the 1935 Charter:
captain to commander, and all other officers of the Government whose appointments are
President alone, in the courts, or in the heads of departments. 2
under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no
extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments that the President may make:
(1) appointments of heads of executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and those of other officers whose
appointments are vested in him under the Constitution, including the regular members of the Judicial and
Bar Council, 5 the Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and
Commissioners of the Commission on Elections, 7 and the Chairman and Commissioners of the
Commission on Audit; 8 (2) those officers whose appointments are not otherwise provided for by law; (3)
those whom he may be authorized by law to appoint; and (4) officers lower in rank whose appointments
the Congress may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a
"rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a
certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary
of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That
is a question addressed to the electorate, and who, despite those "eccentricities," have stamped their
approval on that Charter. "The Court," avers the majority, "will thus construe the applicable constitutional
provisions, not in accordance with how the executive or the legislative department may want them
construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does not
minimize the extent of such a power, much less, make it a shared executive-legislative prerogative.
In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand,
underscored the fact that while the legislature may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it
cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event,
it is as if it is the legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his
supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of the
appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the government
has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no
power is absolutely separate from the other. For republicanism operates on a process of checks and
balances as well, not only to guard against excesses by one branch, but more importantly, "to secure
coordination in the workings of the various departments of the government." 15 Viewed in that light, the
Commission on Appointments acts as a restraint against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson
as the majority notes, in our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for
instance, against the enactment of a bill of attainder operates as a bar against legislative encroachment
upon both judicial and executive domains, since the determination of guilt and punishment of the guilty
address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In
a very real sense, the power of appointment constitutes a check against legislative authority. In Springer
v. Philippine Islands, 17we are told that "Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one
authority, because "the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks
to preserve an executive check upon legislative authority in the interest of avoiding an undue
concentration of power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a
commission the responsibility of administering that very legislation and whose members have been
determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is
the concern of the President, and in going about this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by
law." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that
"the power of removal . . . [is] incident to the power of appointment, 23 although this has since been
tempered in a subsequent case, 24 where it was held that the President may remove only "purely
executive officers, 25 that is, officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held
that the President may remove incumbents of offices confidential in nature, but we likewise made clear
that in such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his
term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all
appointments submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred
by the predominance of checks and counterchecks, yet amid such a rubble of competing powers
emerges a structure whose parts are at times jealous of each other, but which are ultimately necessary in
assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ... When we come to the fundamental
distinctions it is still more obvious that they must be received with a certain latitude or our
government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight compartments,
were it ever so desirable to do so, which I am far from believing that it is, or that the
Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton
might readily have recognized as suggestive of the mechanism of the heavens," (W.
Wilson, Constitutional Government in the United States 56 (1908)] can represent only the
scaffolding of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be
regarded as a mere legal document, to be read as a will or a contract would be. It must,
of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less
rich, Woodrow Wilson once warned, "is that government is not a machine, but a living
thing. It falls, not under the theory of the universe, but under the theory of organic life. It is
accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer
pressure of life. No living thing can have its organs offset against each other as checks,
and five." (Id. at 56.) Yet because no complex society can have its centers of power not
"offset against each other as checks," and resist tyranny, the Model of Separated and
Divided Powers offers continuing testimony to the undying dilemmas of progress and
justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the
legislature (the National Assembly under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and
Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the presiding officer of
most of its plenary session, I am aware that the Convention did not provide for a commission on
appointments on the theory that the Prime Minister, the head of the Government and the sole appointing
power, was himself a member of parliament. For this reason, there was no necessity for a separate body
to scrutinize his appointees. But should such appointees forfeit the confidence of the assembly, they are,
by tradition, required to resign, unless they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening
events forestalled our parliamentary experiment, and beginning with the 1976 amendments and some
140 or so amendments thereafter, we had reverted to the presidential form, 32 without provisions for a
commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the
present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere
safeguard against abuse with respect to those appointments. It does not accord Congress any more than
the power to check, but not to deny, the Chief Executive's appointing power or to supplant his appointees
with its own. It is but an exception to the rule. In limiting the Commission's scope of authority, compared
to that under the 1935 Constitution, I believe that the 1987 Constitution has simply recognized the reality
of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land,
should never have any of its provisions interpreted in a manner that results in absurd or irrational
consequences.
The Commission on Appointments is an important constitutional body which helps give fuller expression
to the principles inherent in our presidential system of government. Its functions cannot be made
innocuous or unreasonably diminished to the confirmation of a limited number of appointees. In the same
manner that the President shares in the enactment of laws which govern the nation, the legislature,
through its Commission on Appointments, gives assurance that only those who can pass the scrutiny of
both the President and Congress will help run the country as officers holding high appointive positions.
The third sentence of the first paragraph — " ... The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards." — specifies only "officers lower in rank" as those who may, by law, be
appointed by the President alone. If as expounded in the majority opinion, only the limited number of
officers in the first sentence of Section 16 require confirmation, the clear intent of the third sentence is
lost. In fact both the second and third sentences become meaningless or superfluous. Superfluity is not to
be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read together.
In providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9,
Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of
cabinet (Section 3, Article VII) and, of course, those who by law the President alone may appoint, the
Constitution clearly provides no need for confirmation. This can only mean that all other appointments
need confirmation. Where there is no need for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares. Without such a declaration, there must be
confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the
government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the interpretation
which Justice Cruz and myself espouse, is more democratic and more in keeping with the system of
government organized under the Constitution.
I, therefore vote to grant the petition.

CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is
required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the
executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed
forces from the rank of colonel or naval captain; and (4) other officers whose appointments are vested in
the President in the Constitution. No confirmation is required under the second sentence for (1) all other
officers whose appointments are not otherwise provided for by law, and (2) those whom the President
may be authorized by law to appoint. Neither is confirmation required by the third sentence for those other
officers lower in rank whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department,
does not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is
under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman
of the Commission on Human Rights, which was created by the Constitution; yet the former is subject to
confirmation but the latter is not because he does not come under the first sentence. The Special
Prosecutor, whose appointment is not vested by the Constitution in the President, is not subject to
confirmation under the first sentence, and neither are the Governor of the Central Bank and the members
of the Monetary Board because they fall under the second sentence as interpreted by the majority
opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose
appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation
is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence of
Section 16, but that is not the provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us. Significantly, although there was a long
discussion of the first sentence in the Constitutional Commission, there is none cited on the second
sentence either in the Solicitor-General's comment or in the majority opinion. We can therefore only
speculate on the correct interpretation of this provision in the light of the first and third sentences of
Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds that
the two sets of officers specified therein may be appointed by the President without the concurrence of
the Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous
results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the majority
opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the
basis of expressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient
by itself to convey the Idea that all other appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was
still felt necessary to provide in the third sentence that the appointment of the other officers lower in rank
will also not need confirmation as long as their appointment is vested by law in the President alone. The
third sentence would appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably to the
language thereof, these lower officers will need the confirmation of the Commission on Appointments
while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than
the bureau director, will have to be confirmed if the Congress does not vest their appointment in the
President alone under the third sentence. On the other hand, their superior, the bureau director himself,
will not need to be confirmed because, according to the majority opinion, he falls not under the first
sentence but the second. This is carefulness in reverse, like checking the bridesmaids but forgetting the
bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the
powers of the Presidency and so prevent the recurrence of another dictatorship. Among the many
measures taken was the restoration of the Commission on Appointments to check the appointing power
which had been much abused by President Marcos. We are now told that even as this body was revived
to limit appointments, the scope of its original authority has itself been limited in the new Constitution. I
have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject to
confirmation. The second sentence is the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the
original intention to exempt bureau directors from confirmation. I repeat that there were no debates on
this matter as far as I know, which simply means that my humble conjecture on the meaning of Section 16
is as arguable, at least, as the suppositions of the majority. We read and rely on the same records. At any
rate, this view is more consistent with the general purpose of Article VII, which, to repeat, was to reduce
the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the
Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment on

page 7, line 28, 1 propose to put a period (.) after 'captain' and on line
ANY.
Mr. Regalado: Madam President, the Committee accepts the proposed

amendment because it makes it clear that those other officers mentioned
therein do not have to be confirmed by the Commission on
Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was
referring to, and a reading in its entirety of this particular debate will suggest that the body was
considering the first sentence of the said section, which I reiterate is not the controversial provision. In
any case, although the excerpt shows that the proposed amendment of Commissioner Foz was accepted
by the committee, it is not reflected, curiously enough, in the final version of Section 16 as a perusal
thereof will readily reveal. Whether it was deleted later in the session or reworded by the style committee
or otherwise replaced for whatever reason will need another surmise on this rather confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at
best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the
Congress is not prevented from adding to the list of officers subject to confirmation by the Commission on
Appointments and cite the debates on this matter in support of this supposition. It is true enough that
there was such a consensus, but it is equally true that this thinking is not at all expressed, or even only
implied, in the language of Section 16 of Article VII. Which should prevail then the provision as worded or
the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either that
it is not absolute or unlimited. The rule re- established by the new Constitution is that the power requires
confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the
system of checks and balances. I submit it is the exception to this rule, and not the rule, that should be
strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the
Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his
deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is vested
by law in the President alone. It is clear that this enumeration does not include the respondent
Commissioner of Customs who, while not covered by the first sentence of Section 16, comes under the
second sentence thereof as I would interpret it and so is also subject to confirmation.
I vote to grant the petition.
EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN.
PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito
Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine
National Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense,
the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the
Secretary of the Interior and Local Government were tasked to execute and implement the said order. In
compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B.
Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was placed
under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. [3] In
the Memorandum, the President expressed his desire to improve the peace and order situation in Metro
Manila through a more effective crime prevention program including increased police patrols. [4] The
President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.[5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the
Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other
for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing
criminal or lawless violence.[6] Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until such time when
the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines
partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and
other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose training,
skill, discipline and firepower prove well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol
in urban areas will reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to
keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all
forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members
include those that are well-trained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office]
and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the
state against insurgents and other serious threat to national security, although the primary responsibility
over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military
and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police aside from neutralizing
crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people
and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols,
local Police Units are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and
the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul
LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional,
arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE

CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY

REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN

FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION
5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO

PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS

UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE
UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the
Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor
General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in deploying
the Marines, contending, among others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since the same involves a political
question; that the organization and conduct of police visibility patrols, which feature the team-up of one
police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint
visibility patrols violates the constitutional provisions on civilian supremacy over the military and the
civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise
the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the
Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial
review only if the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the constitutional question;
(3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that is
being challenged.[13] The term interest means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest. [14] The
gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. [15]
In the case at bar, the 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. Based on the standards
above-stated, the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the
standards of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the National
President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing
him to file the present action. To be sure, members of the BAR, those in the judiciary included, have
varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly
represents, has sustained any form of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have
been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions and may cause
more harm than good in the long run. Not only is the presumed injury not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court
that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that 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.[16] 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. [17] Thus, when
the issues raised are of paramount importance to the public, the Court may brush aside technicalities of
procedure.[18] 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.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this
regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under the aforestated provision. According
to the IBP, no emergency exists that would justify the need for the calling of the military to assist the
police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of the
Marines. Thus, the IBP prays that this Court review the sufficiency of the factual basis for said troop
[Marine] deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits, and
the extent of judicial review. But, while this Court gives considerable weight to the parties formulation of
the issues, the resolution of the controversy may warrant a creative approach that goes beyond the
narrow confines of the issues raised. Thus, while the parties are in agreement that the power exercised
by the President is the power to call out the armed forces, the Court is of the view that the power involved
may be no more than the maintenance of peace and order and promotion of the general welfare. [20] For
one, the realities on the ground do not show that there exist a state of warfare, widespread civil unrest or
anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the
latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of the
peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an emergency specified in the commander-in-chief provision.
For in making the President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the Presidents exercising as Commander-in-Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep
the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the
controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not susceptible to review
by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for
court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are political questions. The reason is that political questions are
concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being
assailed. Moreover, the political question being a function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal branch unless the case shows a clear need for
the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government. Thus, if
an issue is clearly identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be a political question. In
the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case held
to involve a political question is found a textually demonstrable constitutional commitment of the issue to
a coordinate political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarassment from
multifarious pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial
power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to
this Court.[27] When political questions are involved, the Constitution limits the determination as to whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility. [29] Under this definition, a court is without power to
directly decide matters over which full discretionary authority has been delegated. But while this Court
has no power to substitute its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of discretion. [30] A showing that plenary
power is granted either department of government, may not be an obstacle to judicial inquiry, for the
improvident exercise or abuse thereof may give rise to justiciable controversy. [31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom.This is clear from
the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called
upon to overrule the Presidents wisdom or substitute its own.However, this does not prevent an
examination of whether such power was exercised within permissible constitutional limits or whether it
was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as there is no evidence to support the assertion that
there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a manner
as to violate the constitutional provision on civilian supremacy over the military. In the performance of this
Courts duty of purposeful hesitation[32] before declaring an act of another branch as unconstitutional, only
where such grave abuse of discretion is clearly shown shall the Court interfere with the Presidents
judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of such
power. Section 18, Article VII of the Constitution, which embodies the powers of the President as
Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any
part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the
calling out power is also implied and further reinforced in the rest of Section 18, Article VII which reads,
thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of
the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category from the power to declare martial law and
the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution
would have simply lumped together the three powers and provided for their revocation and review without
any qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain
matters, it may not, by interpretation or construction, be extended to other matters. [33] That the intent of
the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the
President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President
as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress
lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose
martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas
corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on
the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by
anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by
the first sentence: The President may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be
handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress
lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must
necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial
review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because it is
considered as the lesser and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend
the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there
must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not
required in the case of the power to call out the armed forces. The only criterion is that whenever it
becomes necessary, the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the
exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In
many instances, the evidence upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call
out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to
have any effect at all. Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the country. The
determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be
a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to
do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can
show that the exercise of such discretion was gravely abused, the Presidents exercise of judgment
deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In
his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups,
kidnappings and carnappings continue to occur in Metro Manila... [35] We do not doubt the veracity of the
Presidents assessment of the situation, especially in the light of present developments. The Court takes
judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls, public
utilities, and other public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis to call for military
aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe
the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the Marines,
the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in
violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the
PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint
visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police
patrol procedures.[38] It is their responsibility to direct and manage the deployment of the Marines. [39] It is,
likewise, their duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the
civilian character of the police force. Neither does it amount to an insidious incursion of the military in the
task of law enforcement in violation of Section 5(4), Article XVI of the Constitution. [41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does
not exercise any authority or control over the same.Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance required in
conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor
can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance
of the military in the implementation and execution of certain traditionally civil functions. As correctly
pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been
rendered, exemplifying the activities that bring both the civilian and the military together in a relationship
of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students; [52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.[59] What we have here is mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force
for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide
for the power to call, the use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the Philippine Marines. Under
the Posse Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute
the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. [62]
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel,
the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such
a manner that the military personnel subjected the citizens to the exercise of military power which was
regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not violate the
Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be insufficient.(emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine whether
there is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no
violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees
with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive,
or compulsory military power. First, the soldiers do not control or direct the operation. This is evident
from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to
prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police
stations for proper disposition.And last, these soldiers apply no coercive force. The materials or
equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in
character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines constitutes no impermissible use of
military power for civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of the
people, this Court is not inclined to overrule the Presidents determination of the factual basis for the
calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen
has complained that his political or civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel secure
in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk in their
midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J.:
If the case at bar is significant, it is because of the government attempt to foist the political question
doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial
scrutiny. If the attempt succeeded, it would have diminished the power of judicial review and
weakened the checking authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that befell the country
when this Court sought refuge in the political question doctrine and forfeited its most important
role as protector of the civil and political rights of our people. The ongoing conflict in Mindanao
may worsen and can force the Chief Executive to resort to the use of his greater commander-in-
chief powers, hence, this Court should be extra cautious in assaying similar attempts. A laid back
posture may not sit well with our people considering that the 1987 Constitution strengthened the
checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting
xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the
Government.1
The importance of the issue at bar includes this humble separate opinion. We can best perceive the
different intersecting dimensions of the political question doctrine by viewing them from the broader
canvass of history. Political questions are defined as those questions which under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of government. 2 They have two aspects: (1) those
matters that are to be exercised by the people in their primary political capacity and (2) matters which
have been specifically delegated to some other department or particular office of the government, with
discretionary power to act.3 The exercise of the discretionary power of the legislative or executive branch
of government was often the area where the Court had to wrestle with the political question doctrine. 4
A brief review of some of our case law will thus give us a sharper perspective of the political question
doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v. Baker.5 The
Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine Commission,
suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on a finding of open
insurrection in said provinces. Felix Barcelon, who was detained by constabulary officers in Batangas,
filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in
Batangas. The issue to resolve was whether or not the judicial department may investigate the facts upon
which the legislative (the Philippine Commission) and executive (the Governor-General) branches of
government acted in suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no authority to inquire into
the acts of another, which acts are performed within the discretion of the other department. 6 Surveying
American law and jurisprudence, it held that whenever a statute gives discretionary power to any person,
to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole judge of
the existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and
the Governor-General to suspend the privilege of the writ of habeas corpus, this power
is exclusively within the discretion of the legislative and executive branches of government. The
exercise of this discretion is conclusive upon the courts.8
The Court further held that once a determination is made by the executive and legislative
departments that the conditions justifying the assailed acts exists, it will presume that the conditions
continue until the same authority decide that they no longer exist. 9 It adopted the rationale that the
executive branch, thru its civil and military branches, are better situated to obtain information about
peace and order from every corner of the nation, in contrast with the judicial department, with its very
limited machinery.10 The seed of the political question doctrine was thus planted in Philippine soil.
The doctrine barring judicial review because of the political question doctrine was next
applied to the internal affairs of the legislature. The Court refused to interfere in the legislative
exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v.
Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by Senate
Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate, and
was suspended from office for one year. Senator Alejandrino filed a petition for mandamus and injunction
to compel the Senate to reinstate him. The Court held that under the Jones Law, the power of the Senate
to punish its members for disorderly behavior does not authorize it to suspend an appointive member
from the exercise of his office. While the Court found that the suspension was illegal, it refused to issue
the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to
make the Philippine Senate take any particular action. [T]he Philippine Legislature or any branch thereof
cannot be directly controlled in the exercise of their legislative powers by any judicial process." 12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three
senators-elect who had been prevented from taking their oaths of office by a Senate resolution repaired
to this Court to compel their colleagues to allow them to occupy their seats contending that only the
Electoral Tribunal had jurisdiction over contests relating to their election, returns and qualifications. Again,
the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to
determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who were
proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage
of the Parity amendment to the Constitution. If their votes had been counted, the affirmative votes in favor
of the proposed amendment would have been short of the necessary three-fourths vote in either House of
Congress to pass the amendment. The amendment was eventually submitted to the people for
ratification. The Court declined to intervene and held that a proposal to amend the Constitution is a highly
political function performed by Congress in its sovereign legislative capacity. 15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his
detention ordered by the Senate for his refusal to answer questions put to him by members of one of its
investigating committees. This Court refused to order his release holding that the process by which a
contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative process
and the legislature's exercise of its discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line. Congressman
Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior for
making a privilege speech imputing "malicious charges" against the President of the Philippines. Osmena,
Jr. invoked the power of review of this Court but the Court once more did not interfere with Congress'
power to discipline its members.
The contours of the political question doctrine have always been tricky. To be sure, the Court did not
always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18 Senate
President Jose Avelino, who was deposed and replaced, questioned his successor's title claiming that the
latter had been elected without a quorum. The petition was initially dismissed on the ground that the
selection of Senate President was an internal matter and not subject to judicial review. 19 On
reconsideration, however, the Court ruled that it could assume jurisdiction over the controversy in light of
subsequent events justifying intervention among which was the existence of a quorum. 20 Though the
petition was ultimately dismissed, the Court declared respondent Cuenco as the legally elected Senate
President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute involving the
formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's claim that
the dispute involved a political question. Instead, it declared that the Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its
power thereon is subject to constitutional limitations which are mandatory in nature. 22 It held that under
the Constitution, the membership of the Senate Electoral Tribunal was designed to insure the exercise of
judicial impartiality in the disposition of election contests affecting members of the lawmaking body. 23 The
Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party
having the largest number of votes of two of their party members but purporting to act on behalf of the
party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress had
formed the Commission on Appointments in accordance with the Constitution and found that it did not. It
declared that the Commission on Appointments is a creature of the Constitution and its power does not
come from Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as a
constituent assembly in proposing amendments to the Constitution violates the Constitution was held to
be a justiciable and not a political issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in Congress
in favor of a proposed amendment to the Constitution-which was being submitted to the people for
ratification-satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada
v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees
of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President,
as claimed by the latter; in the second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the
party having the largest number of votes in said chamber, purporting to act on behalf of the party having
the second largest number of votes therein, of two (2) Senators belonging to the first party, as members,
for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an
act of Congress purporting to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the issues
therein raised were political questions the determination of which is beyond judicial review. 27
The Court explained that the power to amend the Constitution or to propose amendments thereto is
not included in the general grant of legislative powers to Congress. As a constituent assembly, the
members of Congress derive their authority from the fundamental law and they do not have the final say
on whether their acts are within or beyond constitutional limits. 28 This ruling was reiterated
in Tolentino which held that acts of a constitutional convention called for the purpose of proposing
amendments to the Constitution are at par with acts of Congress acting as a constituent assembly. 29
In sum, this Court brushed aside the political question doctrine and assumed jurisdiction
whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the
Legislature.30
The Court hewed to the same line as regards the exercise of Executive power. Thus, the
respect accorded executive discretion was observed in Severino v. Governor-General,31where it was
held that the Governor-General, as head of the executive department, could not be compelled by
mandamus to call a special election in the town of Silay for the purpose of electing a municipal
president. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary. It
was held that when the Legislature conferred upon the Governor-General powers and duties, it did so for
the reason that he was in a better position to know the needs of the country than any other member of the
executive department, and with full confidence that he will perform such duties as his best judgment
dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be compelled by
mandamus to produce certain vouchers showing the various expenditures of the Independence
Commission. Under the principle of separation of powers, it ruled that it was not intended by the
Constitution that one branch of government could encroach upon the field of duty of the other. Each
department has an exclusive field within which it can perform its part within certain discretionary limits. 34 It
observed that "the executive and legislative departments of government are frequently called upon to deal
with what are known as political questions, with which the judicial department of government has no
intervention. In all such questions, the courts uniformly refused to intervene for the purpose of directing or
controlling the actions of the other department; such questions being many times reserved to those
departments in the organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief
Executive from deporting an obnoxious alien whose continued presence in the Philippines was found by
him to be injurious to the public interest. It noted that sudden and unexpected conditions may arise,
growing out of the presence of untrustworthy aliens, which demand immediate action. The President's
inherent power to deport undesirable aliens is universally denominated as political, and this power
continues to exist for the preservation of the peace and domestic tranquility of the nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the President's
appointing power. It held that the appointing power is the exclusive prerogative of the President, upon
which no limitations may be imposed by Congress, except those resulting from the need of securing
concurrence of the Commission on Appointments and from the exercise of the limited legislative power to
prescribe qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis
the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of the
Armed Forces, the President has the power to determine whether war, in the legal sense, still continues
or has terminated. It ruled that it is within the province of the political department and not of the judicial
department of government to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President Quirino
suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of
sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide
whether the exigency has arisen requiring the suspension of the privilege belongs to the President and
his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang
reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus
was not a political question. According to the Court, the weight of Barcelon was diluted by two factors: (1)
it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out the militia which
is a much broader power than suspension of the privilege of the writ; and (2) the privilege was suspended
by the American Governor-General whose act, as representative of the sovereign affecting the freedom of
its subjects, could not be equated with that of the President of the Philippines dealing with the freedom of
the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas corpus is
neither absolute nor unqualified because the Constitution sets limits on the exercise of executive
discretion on the matter. These limits are: (1) that the privilege must not be suspended except only in
cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when the public safety
requires it, in any of which events the same may be suspended wherever during such period the
necessity for the suspension shall exist. The extent of the power which may be inquired into by courts is
defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of power, it ruled that
the function of the Court is not to supplant but merely to check the Executive; to ascertain whether the
President has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act. Judicial inquiry is confined to the question of whether the
President did not act arbitrarily.44 Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the political question
defense. The issue divided the Court down the middle. Javellana v. Executive Secretary45 showed that
while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified
in accordance with the 1935 Constitution was justiciable, a majority also ruled that the decisive issue of
whether the 1973 Constitution had come into force and effect, with or without constitutional ratification,
was a political question.46
The validity of the declaration of martial law by then President Marcos was next litigated before the
Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law.On whether the
validity of the imposition of martial law was a political or justiciable question, the Court was almost evenly
divided. One-half embraced the political question position and the other half subscribed to the justiciable
position in Lansang. Those adhering to the political question doctrine used different methods of approach
to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The
petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential
Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas corpus. The Court found
that the PCO had the function of validating a person's detention for any of the offenses covered in
Proclamation No. 2045 which continued in force the suspension of the privilege of the writ of habeas
corpus. It held that the issuance of the PCO by the President was not subject to judicial inquiry. 50 It went
further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and
Montenegro. It observed that in times of war or national emergency, the President must be given absolute
control for the very life of the nation and government is in great peril. The President, it intoned, is
answerable only to his conscience, the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every
phase and aspect of a person's detention from the moment he was taken into custody up to the moment
the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that
the due process clause of the Constitution has been met.53
It is now history that the improper reliance by the Court on the political question doctrine
eroded the people's faith in its capacity to check abuses committed by the then Executive in the
exercise of his commander-in-chief powers, particularly violations against human rights. The
refusal of courts to be pro-active in the exercise of its checking power drove the people to the
streets to resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987
Constitution. The first was the need to grant this Court the express power to review the exercise of the
powers as commander-in-chief by the President and deny it of any discretion to decline its
exercise. The second was the need to compel the Court to be pro-active by expanding its jurisdiction
and, thus, reject its laid back stance against acts constituting grave abuse of discretion on the part of any
branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of the
Constitutional Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in
the draft Constitution,54 which reads:
"Sec. 1. x x x.
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."
The language of the provision clearly gives the Court the power to strike down acts amounting to grave
abuse of discretion of both the legislative and executive branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional
history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or suspension for a period
to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ
or the extension thereof, and must promulgate its decision thereon within thirty days from its
filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of
the Philippines, may call out the armed forces subject to two conditions: (1) whenever it becomes
necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably,
these conditions lay down the sine qua requirement for the exercise of the power and the objective
sought to be attained by the exercise of the power. They define the constitutional parameters of
the calling out power. Whether or not there is compliance with these parameters is a justiciable
issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission, Commissioner Bernas
opined that the President's exercise of the "calling out power," unlike the suspension of the privilege of
the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a political
question and therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the floor of the
Constitutional Convention is valuable, it is not necessarily expressive of the people's intent. 55 The
proceedings of the Convention are less conclusive on the proper construction of the fundamental law than
are legislative proceedings of the proper construction of a statute, for in the latter case it is the intent of
the legislature the courts seek, while in the former, courts seek to arrive at the intent of
the people through the discussions and deliberations of their representatives. 56 The conventional wisdom
is that the Constitution does not derive its force from the convention which framed it, but from the people
who ratified it, the intent to be arrived at is that of the people.57
It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution expressly
gives the Court the power to review the sufficiency of the factual bases used by the President in
the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It
does not follow, however, that just because the same provision did not grant to this Court the
power to review the exercise of the calling out power by the President, ergo, this Court cannot
pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merely means that
the Court cannot decline the exercise of its power because of the political question doctrine as it
did in the past. In fine, the express grant simply stresses the mandatory duty of this Court to
check the exercise of the commander-in-chief powers of the President. It eliminated the discretion
of the Court not to wield its power of review thru the use of the political question doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to the power to
suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its
exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the
armed forces, as its impact on the rights of our people protected by the Constitution cannot be
downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that
they have lesser impact on the civil and political rights of our people. The exercise of the calling out power
may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion
in Lansang that it would be dangerous and misleading to push the political question doctrine too far,
is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness when a
grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power,
especially when the question at issue falls in the penumbra between the "political" and the "justiciable. "58
We should not water down the ruling that deciding whether a matter has been committed by the
Constitution to another branch of government, or whether the action of that branch exceeds whatever
authority has been committed, is a delicate exercise in constitutional interpretation, and is
a responsibility of the Court as ultimate interpreter of the fundamental law.59 When private
justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though
questions of extreme political importance are necessarily involved.60Every officer under a constitutional
government must act according to law and subject to the controlling power of the people, acting through
the courts, as well as through the executive and legislative. One department is just as representative of
the other, and the judiciary is the department which is charged with the special duty of determining the
limitations which the law places upon all official action.61 This historic role of the Court is the foundation
stone of a government of laws and not of men.62
I join the Decision in its result.
SEPARATE OPINION
VITUG, J.:
In the equation of judicial power, neither of two extremes - one totalistic and the other bounded - is
acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial power" to be
that which -
x x x includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.1
It is not meant that the Supreme Court must be deemed vested with the awesome power of overseeing
the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its mandate. But while this
Court does not wield unlimited authority to strike down an act of its two co-equal branches of government,
it must not wither under technical guise on its constitutionally ordained task to intervene, and to nullify if
need be, any such act as and when it is attended by grave abuse of discretion amounting to lack or
excess of jurisdiction. The proscription then against an interposition by the Court into purely political
questions, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion:
"x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to
establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no
one branch or agency of the government transcends the Constitution, not only in justiceable but political
questions as well."3
It is here when the Court must have to depart from the broad principle of separation of powers that
disallows an intrusion by it in respect to the purely political decisions of its independent and coordinate
agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as being, and confined
to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of
jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views, the act
of the President in simply calling on the Armed Forces of the Philippines, an executive prerogative,
to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not, I
believe, constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of
its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question the
validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols with the
police in Metro Manila. But I dissent insofar as the opinion dismisses the petition in this case on other
grounds. I submit that judgment on the substantive constitutional issues raised by petitioner must await
an actual case involving real parties with "injuries" to show as a result of the operation of the challenged
executive action. While as an organization for the advancement of the rule of law petitioner has an
interest in upholding the Constitution, its interest is indistinguishable from the interest of the rest of the
citizenry and falls short of that which is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental action
requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent nature; (2)
there must be a causal connection between the injury and the conduct complained of; and (3) the injury is
likely to be redressed by a favorable action by this Court.1The "injury in fact" test requires more than injury
to a cognizable interest. It requires that the party seeking review be himself among those injured.2
My insistence on compliance with the standing requirement is grounded in the conviction that only a
party injured by the operation of the governmental action challenged is in the best position to aid the
Court in determining the precise nature of the problem presented. Many a time we have adverted to the
power of judicial review as an awesome power not to be exercised save in the most exigent situation. For,
indeed, sound judgment on momentous constitutional questions is not likely to be reached unless it is the
result of a clash of adversary arguments which only parties with direct and specific interest in the outcome
of the controversy can make. This is true not only when we strike down a law or official action but also
when we uphold it.
In this case, because of the absence of parties with real and substantial interest to protect, we do not
have evidence on the effect of military presence in malls and commercial centers, i.e., whether such
presence is coercive or benign. We do not know whether the presence of so many marines and
policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be
sure, the deployment of troops to such places is not like parading them at the Luneta on Independence
Day. Neither is it, however, like calling them out because of actual fighting or the outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the President's
power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is subject to
the limitation that the exercise of this power is required in the interest of public safety. 3
Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless violence,
invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or the
proclamation of martial law (in case of invasion or rebellion), the exercise of the President's powers as
commander-in-chief, requires proof - not mere assertion.4 As has been pointed out, "Standing is not `an
ingenious academic exercise in the conceivable' . . . but requires . . . a factual showing of perceptible
harm."5
Because of the absence of such record evidence, we are left to guess or even speculate on these
questions. Thus, at one point, the majority opinion says that what is involved here is not even the calling
out of the armed forces but only the use of marines for law enforcement. (p. 13) At another point,
however, the majority opinion somersaults and says that because of bombings perpetrated by lawless
elements, the deployment of troops in shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the
military does not violate the Constitution, just as we are likely to do so if we grant the petition and
invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital controversy
can only impoverish the judicial process. That is why, as Justice Laurel emphasized in the Angara case,
"this power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented."6
We are told, however, that the issues raised in this case are of "paramount interest" to the nation. It
is precisely because the issues raised are of paramount importance that we should all the more forego
ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground
of lack of standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by the majority
opinion on the constitutional questions raised, I am constrained to limit my concurrence to the dismissal of
this suit on the ground of lack of standing of petitioner and the consequent lack of an actual case or
controversy.
republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION.
G.R. No. L-42428 March 18, 1983
BERNARDINO MARCELINO, petitioner,

vs.
THE HON. FERNANDO CRUZ, JR., as Presiding Judge of Branch XII of the Court of First Instance
of Rizal, PEOPLE OF THE PHILIPPINES, and THE PROVINCIAL WARDEN OF THE PROVINCIAL
JAIL OF RIZAL, respondents.
ESCOLIN, J.:
A petition for prohibition and writ of habeas corpus to enjoin respondent Judge Fernando Cruz, Jr. from
promulgating his decision in Criminal Case No. C-5910, entitled People of the Philippines versus
Bernardino Marcelino, and for release from detention of petitioner, the accused in said case, on the
ground of loss of jurisdiction of respondent trial court over the case for failure to decide the same within
the period of ninety [90] days from submission thereof.
Petitioner was charged with the crime of rape before the Court of First Instance of Rizal, Branch XII. Trial
was conducted and the same was concluded when the accused rested his case on August 4, 1975. On
the same date, however, the attorneys for both parties moved for time within which to submit their
respective memoranda. The trial court granted the motion as follows:
Upon joint motion, the parties are given thirty [30] days to submit their respective
memoranda, simultaneously, and thereafter the case shall be deemed submitted for
decision of the Court.
Counsel for petitioner submitted his memorandum in due time, but no memorandum was filed by the
People.
On November 28, 1975, respondent judge filed with the Deputy Clerk of Court his decision in said case
for promulgation. The decision was also dated November 28, 1975. 1
A certification dated January 26, 1976 was executed by Postmaster Jesse A. Santos of the Grace Park
Post Office 2to the effect that registered letters Nos. 011980 and 011981, addressed to Marietta Ferrer of
9-E Mango Road, Portero, Malabon, Rizal, the complaining witness, and Atty, Angel P. Purisima of 414
Shurdut Bldg., Intramuros, Manila, counsel for the accused, respectively, were posted in said office on
December 4, 1975. These notices were received by the respective addressees on December 8 and 9,
1975. 3
Similar notices were sent to the Provincial Fiscal of Pasig and to the Provincial Warden of Pasig, Rizal,
who both received them on December 2,1975, 4
On the date set for promulgation of the decision, counsel for accused moved for postponement, raising
for the first time the alleged loss of jurisdiction of the trial court for failure to decide the case within 90
days from submission thereof for decision. Acceding to counsel's request that he be given time to
consider the proper remedial measure to take, the respondent judge reset the promulgation of the
decision to January 19, 1976 at 8:30 A. M.
On January 19, 1976, counsel for petitioner moved anew for the resetting of the promulgation of decision.
Granting the motion, respondent judge rescheduled the promulgation to January 26, 1976.
Meanwhile, on January 12, 1976, counsel for the accused filed before Us the present petition. On
January 16, 1976, this Court issued an Order temporarily restraining respondent judge from promulgating
the decision in Criminal Case No, C-5910.
Petitioner espouses the thesis that the three-month period prescribed by Section 11[l] of Article X of the
1973 Constitution, being a constitutional directive, is mandatory in character and that non-observance
thereof results in the loss of jurisdiction of the court over the unresolved case.
We disagree. Undisputed is the fact that on November 28, 1975, or eighty- five [851 days from
September 4, 1975 the date the case was deemed submitted for decision, respondent judge filed with the
deputy clerk of court the decision in Criminal Case No. 5910. He had thus veritably rendered his decision
on said case within the three-month period prescribed by the Constitution.
In Comia v. Nicolas, 5 Ago v. Court of Appeals 6 and Balquidra v. Court of First Instance 7 this Court ruled
that the rendition of the judgment in trial courts refers to the filing of the signed decision with the clerk of
court. There is no doubt that the constitutional provision cited by petitioner refers to the rendition of
judgment and not to the promulgation thereof. Thus, it is this date that should be considered in
determining whether or not respondent judge had resolved the case within the allotted period. Indeed, the
date of promulgation of a decision could not serve as the reckoning date because the same necessarily
comes at at a later date, considering that notices have to be sent to the accused as well as to the other
parties involved, an event which is beyond the control of the judge. As pointed out in People v. Court of
Appeals 8, the promulgation of a judgment in the trial court does not necessarily coincide with the date of
its delivery by the judge of the clerk of court.
Section 11 [1], Article X of the New Constitution provides in full, to wit:
SEC. 11 [1]. Upon the effectivity of this Constitution, the maximum period within which a
case or matter shall be decided or resolved from the date of its submission, shall be
eighteen months for the Supreme court, and, unless reduced by the Supreme Court,
twelve months for all inferior collegiate courts, and three months for all other inferior
courts.
To date, no authoritative interpretation of the above-quoted provision has been rendered by this Court.
Thus, in approaching this novel question, We now tread upon what Mr. Cooley characterizes as "very
dangerous ground when they [referring to the courts] venture to apply rules which distinguish directory
and mandatory statutes to the provisions of a constitution." 9
The established rule is that "constitutional provisions are to be construed as mandatory, unless by
express provision or by necessary implication, a different intention is manifest." 10 "The difference
between a mandatory and a directory provision is often determined on grounds of expediency, the reason
being that less injury results to the general public by disregarding than by enforcing the letter of the
law." 11
In Trapp v. McCormick, 12 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.
On this view, authorities are one in saying that:
Statutes requiring the rendition of judgment forthwith or immediately after the trial or
verdict have been held by some courts to be merely directory so that non-compliance
with them does not invalidate the judgment, on the theory that if the statute had intended
such result it would clearly have indicated it." [American Tupe Founders Co. v. Justice's
Court, 133 Cal. 819, 65 Pac. 742; Heillen v. Phillips, 88 Cal. 557, 26 Pac. 366; Drake v.
Bagley, 69 Mo. App. 39, State v. Davis, 194 Mo. 585, 5 Ann. Cas. 1000, 4 L.R.A. (N.S.)
1023, 92 S.W. 484; Wissman v. Meagher, 115 Mo. App. 82, 91 S.W. 448; Pohle v.
Dickmann, 67 Mo. App. 381; Herwick v. Koken Barber Supply Co., 61 Mo. App. 454].
Such construction applies equally to the constitutional provision under consideration. In Mikell v. School
Dis. of Philadelphia, 13 it was ruled that "the legal distinction between directory and mandatory laws is
applicable to fundamental as it is to statutory laws."
To Our mind, the phraseology of the provision in question indicates that it falls within the exception rather
than the general rule. By the phrase "unless reduced by the Supreme Court," it is evident that the period
prescribed therein is subject to modification by this Court in accordance with its prerogative under Section
5[5] of Article X of the New Constitution to "promulgate rules concerning pleading, practice and procedure
in all courts ... " And there can be no doubt that said provision, having been incorporated for reasons of
expediency, relates merely to matters of procedure. Albermarle Oil & Gas Co. v. Morris, 14 declares that
constitutional provisions are directory, and not mandatory, where they refer to matters merely procedural.
In practice, We have assumed a liberal stand with respect to this provision. This Court had at various
times, upon proper application and for meritorious reasons, allowed judges of inferior courts additional
time beyond the three-month period within which to decide cases submitted to them. The reason is that a
departure from said provision would result in less injury to the general public than would its strict
application. To hold that non-compliance by the courts with the aforesaid provision would result in loss of
jurisdiction, would make the courts, through which conflicts are resolved, the very instruments to foster
unresolved causes by reason merely of having failed to render a decision within the alloted term. Such an
absurd situation could not have been intended by the framers of our fundamental law.
As foreseen by Mr. Henry Campbell Black in his Construction and Interpretation of the Laws, 15 the
constitutional provision in question should be held merely as directory. "Thus, where the contrary
construction) would lead to absurd, impossible or mischievous consequences, it should not be followed. "
One last point, Notwithstanding Our conclusion that courts are not divested of their jurisdiction for failure
to decide a case within the ninety-day period, We here emphasize the rule, for the guidance of the judges
manning our courts, that cases pending before their salas must be decided within the aforementioned
period. Failure to observe said rule constitutes a ground for administrative sanction against the defaulting
judge. In fact a certificate to this certificate is required before judges are allowed Lo draw their salaries.
WHEREFORE, the petition is hereby dismissed; and the Restraining Order dated January 16, 1976
issued by this Court is lifted. Since respondent Judge Fernando Cruz, Jr. is already deceased, his
successor is hereby ordered to decide Criminal Case No. C-5910 on the basis of the record thereof within
ninety [90] days from the time the case is raffled to him.
SO ORDERED.
Makasiar (Chairman), Concepcion Jr., Guerrero and De Castro, JJ., concur.
Aquino, J., is on leave.
Separate Opinions
ABAD SANTOS, J., concurring:

I concur and I wish to add the following observations:
The petitioner sinks release from detention on the ground of loss of jurisdiction of the trial court allegedly
because its judge failed to decide his case within 90 days from the date of its submission. Section 11(1),
Art. X of the Constitution is invoked.
The main opinion states that the 90-day period was not exceeded in this case and I agree. But exceeded
or not, a decision rendered by an inferior court outside of the 90-day period is not void for loss of
jurisdiction. To hold otherwise is to make the administration of justice depend heavily on the frailities of a
human judge. A decision rendered beyond the 90-day period, I submit, is valid and the only consequence
is to subject the erring judge to administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of their right to collect their
salaries or to apply for leave (section 5, Judiciary Act of 1948; section 129, Revised Administrative Code)
but does not deprive them of jurisdiction to act in the causes pending before them." (Dimson vs. Elepaño,
99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be promulgated. "It is well-settled
that, to be binding, a judgment must be duly signed and promulgated during the incumbency of the judge
whose signature appears thereon." (People vs. So, July 30, 1957, No. L-8732, citing Lino Luna v.
Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil. 675; Barredo v. The Commission on Elections,
45 Off. Gaz. 4457; People v. Court of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case
has to be declared by another judge.
Separate Opinions
I concur and I wish to add the following observations:
The petitioner sinks release from detention on the ground of loss of jurisdiction of the trial court allegedly
because its judge failed to decide his case within 90 days from the date of its submission. Section 11(1),
Art. X of the Constitution is invoked.
The main opinion states that the 90-day period was not exceeded in this case and I agree. But exceeded
or not, a decision rendered by an inferior court outside of the 90-day period is not void for loss of
jurisdiction. To hold otherwise is to make the administration of justice depend heavily on the frailities of a
human judge. A decision rendered beyond the 90-day period, I submit, is valid and the only consequence
is to subject the erring judge to administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of their right to collect their
salaries or to apply for leave (section 5, Judiciary Act of 1948; section 129, Revised Administrative Code)
but does not deprive them of jurisdiction to act in the causes pending before them." (Dimson vs. Elepaño,
99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be promulgated. "It is well-settled
that, to be binding, a judgment must be duly signed and promulgated during the incumbency of the judge
whose signature appears thereon." (People vs. So, July 30, 1957, No. L-8732, citing Lino Luna v.
Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil. 675; Barredo v. The Commission on Elections,
45 Off. Gaz. 4457; People v. Court of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case
has to be declared by another judge.
SUPREME COURT
Manila
EN BANC
G.R. Nos. 92191-92 July 30, 1991
ANTONIO Y. CO, petitioner,

vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG,
JR., respondents.
G.R. Nos. 92202-03 July 30, 1991
SIXTO T. BALANQUIT, JR., petitioner,

vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG,
JR., respondents.
Hechanova & Associates for petitioner Co.

Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.
GUTIERREZ, JR., J.:
The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of
Representatives Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of
Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that
determination, the HRET acted with grave abuse of discretion.
On May 11, 1987, the congressional election for the second district of Northern Samar was held.
Among the candidates who vied for the position of representative in the second legislative district of
Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong,
Jr.
Respondent Ong was proclaimed the duly elected representative of the second district of Northern
Samar.
The petitioners filed election protests against the private respondent premised on the following grounds:
1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and
2) Jose Ong, Jr. is not a resident of the second district of Northern Samar.
The HRET in its decision dated November 6, 1989, found for the private respondent.
A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however,
denied by the HRET in its resolution dated February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the issues raised in the petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the
Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns,
and qualifications of their respective members. (See Article VI, Section 17, Constitution)
The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the
word sole emphasizes the exclusivity of the jurisdiction of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987
Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz:
The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred
(Angara v. Electoral Commission, supra at p. 162). The exercise of power by the Electoral
Commission under the 1935 Constitution has been described as "intended to be as complete and
unimpaired as if it had originally remained in the legislature." (id., at p. 175) Earlier this grant of
power to the legislature was characterized by Justice Malcolm as "full, clear and complete;
(Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended
1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it
remained as full, clear and complete as that previously granted the Legislature and the Electoral
Commission, (Lachica v. Yap, 25 SCRA 140 [1968]) The same may be said with regard to the
jurisdiction of the Electoral Tribunal under the 1987 Constitution. (p. 401)
The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole
judge of all contests relating to election, returns and qualifications of members of the House of
Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not
be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it
or even affect the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments
of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called
extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered
without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a
clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of
due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting
such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." (at pp. 785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the
Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such
arbitrary and improvident use of power as will constitute a denial of due process." The Court does not
venture into the perilous area of trying to correct perceived errors of independent branches of the
Government, It comes in only when it has to vindicate a denial of due process or correct an abuse of
discretion so grave or glaring that no less than the Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak,
to review the decisions of the other branches and agencies of the government to determine whether or
not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution)
Yet, in the exercise thereof, the Court is to merely 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 that the HRET has committed grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter
which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668 [1989]) It
has no power to look into what it thinks is apparent error.
As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in
the tripartite scheme of the government, are, in the exercise of their functions independent organs —
independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is
intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v.
Electoral Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must
permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it.
(See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as
it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals.
There is nothing in the Constitution, however, that makes the HRET because of its composition any less
independent from the Court or its constitutional functions any less exclusive. The degree of judicial
intervention should not be made to depend on how many legislative members of the HRET belong to this
party or that party. The test remains the same-manifest grave abuse of discretion.
In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of
the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the
Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land
which he bought from the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish
colonial administration.
The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by
Ong Te to Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an
enduring relationship with his neighbors, resulting in his easy assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino
cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan
met a natural born-Filipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932
according to Catholic faith and practice.
The couple bore eight children, one of whom is the private respondent who was born in 1948.
The private respondent's father never emigrated from this country. He decided to put up a hardware store
and shared and survived the vicissitudes of life in Samar.
The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo,
Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an
unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar
an application for naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28,
1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of
naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was
finishing his elementary education in the province of Samar. There is nothing in the records to
differentiate him from other Filipinos insofar as the customs and practices of the local populace were
concerned.
Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the
ground.
Undaunted by the catastrophe, the private respondent's family constructed another one in place of their
ruined house. Again, there is no showing other than that Laoang was their abode and home.
After completing his elementary education, the private respondent, in search for better education, went to
Manila in order to acquire his secondary and college education.
In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second
house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door
apartment building, two doors of which were reserved for the family.
The private respondent graduated from college, and thereafter took and passed the CPA Board
Examinations.
Since employment opportunities were better in Manila, the respondent looked for work here. He found a
job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware
business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971
Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the
Convention which in drafting the Constitution removed the unequal treatment given to derived citizenship
on the basis of the mother's citizenship formally and solemnly declared Emil Ong, respondent's full
brother, as a natural born Filipino. The Constitutional Convention had to be aware of the meaning of
natural born citizenship since it was precisely amending the article on this subject.
The private respondent frequently went home to Laoang, Samar, where he grew up and spent his
childhood days.
In 1984, the private respondent married a Filipina named Desiree Lim.

For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and
correspondingly, voted there during those elections.
The private respondent after being engaged for several years in the management of their family business
decided to be of greater service to his province and ran for public office. Hence, when the opportunity
came in 1987, he ran in the elections for representative in the second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress.
Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than
7,000 votes.
The pertinent portions of the Constitution found in Article IV read:
SECTION 1, the following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the adoption of the Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority; and
4. Those who are naturalized in accordance with law.
SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their citizenship. Those who elect Philippine
citizenship in accordance with paragraph 3 hereof shall be deemed natural-born citizens.
The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine
citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected
citizenship before that date.
The provision in Paragraph 3 was intended to correct an unfair position which discriminates against
Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of section 4, would this refer only to those who elect
Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who
elected it under the 1973 Constitution?
Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue of the provision
of the 1935 Constitution whether the election was done before or after January 17, 1973.
(Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis supplied)
xxx xxx xxx
Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and
Human Rights has more or less decided to extend the interpretation of who is a natural-born
citizen as provided in section 4 of the 1973 Constitution by adding that persons who have elected
Philippine Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr. Presiding
Officer?
Fr. Bernas: yes.

xxx xxx xxx
Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well written book, he
said that the decision was designed merely to accommodate former delegate Ernesto Ang and
that the definition on natural-born has no retroactive effect. Now it seems that the Reverend
Father Bernas is going against this intention by supporting the amendment?
Fr. Bernas: As the Commissioner can see, there has been an evolution in my thinking. (Records
of the Constitutional Commission, Vol. 1, p. 189)
xxx xxx xxx
Mr. Rodrigo: But this provision becomes very important because his election of Philippine
citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen entitling him to
run for Congress. . .
Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it to the body to
approve that provision of section 4.
Mr. Rodrigo: I think there is a good basis for the provision because it strikes me as unfair that the
Filipino citizen who was born a day before January 17, 1973 cannot be a Filipino citizen or a
natural-born citizen. (Records of the Constitutional Commission, Vol. 1, p. 231)
xxx xxx xxx
Mr. Rodrigo: The purpose of that provision is to remedy an inequitable

situation.1avvphi1 Between 1935 and 1973 when we were under the 1935 Constitution, those
born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of
Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age
of majority; and if they do elect, they become Filipino citizens but not natural-born Filipino
citizens. (Records of the Constitutional Commission, Vol. 1, p. 356)
The foregoing significantly reveals the intent of the framers. To make the provision prospective from
February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be
retroactive.
It should be noted that in construing the law, the Courts are not always to be hedged in by the literal
meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where
adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279
[1970])
A Constitutional provision should be construed so as to give it effective operation and suppress the
mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter
thereof. (Jarrolt v. Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]:
To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be
construed narrowly or pedantically for the prescriptions therein contained, to paraphrase Justice
Holmes, are not mathematical formulas having their essence in their form but are organic living
institutions, the significance of which is vital not formal. . . . (p. 427)
The provision in question was enacted to correct the anomalous situation where one born of a Filipino
father and an alien mother was automatically granted the status of a natural-born citizen while one born of
a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he
was not, under earlier laws, conferred the status of a natural-born.
Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an
alien father were placed on equal footing. They were both considered as natural-born citizens.
Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident
of time or result in two kinds of citizens made up of essentially the same similarly situated members.
It is for this reason that the amendments were enacted, that is, in order to remedy this accidental
anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected
Philippine citizenship either before or after the effectivity of that Constitution.
The Constitutional provision in question is, therefore curative in nature. The enactment was meant to
correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid which
would have been nil at the time had it not been for the curative provisions. (See Development Bank of the
Philippines v. Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage.
Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen.
Election becomes material because Section 2 of Article IV of the Constitution accords natural born status
to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the
age of majority.
To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask
for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his
mother a natural born citizen but his father had been naturalized when the respondent was only nine (9)
years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would
be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his
already having been a citizen since 1957. In 1969, election through a sworn statement would have been
an unusual and unnecessary procedure for one who had been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal and an informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right
of suffrage and the participation in election exercises constitute a positive act of election of Philippine
citizenship. In the exact pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of
election of Philippine citizenship (p. 52; emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has established his life
here in the Philippines.
For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship
as they were already citizens, we apply the In Re Mallare rule.
The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no
racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for
naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive
government agency. His profession requires citizenship for taking the examinations and getting a license.
He has participated in political exercises as a Filipino and has always considered himself a Filipino
citizen. There is nothing in the records to show that he does not embrace Philippine customs and values,
nothing to indicate any tinge of alien-ness no acts to show that this country is not his natural homeland.
The mass of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should know him
better than any member of this Court will ever know him. They voted by overwhelming numbers to have
him represent them in Congress. Because of his acts since childhood, they have considered him as a
Filipino.
The filing of sworn statement or formal declaration is a requirement for those who still have to elect
citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice
which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where
citizenship is a qualification, voting during election time, running for public office, and other categorical
acts of similar nature are themselves formal manifestations of choice for these persons.
An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is
doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a
Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private respondent would not only
have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect
Philippine citizenship?
The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that
"when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino.
Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor
residing in this country. Concededly, it was the law itself that had already elected Philippine citizenship for
protestee by declaring him as such." (Emphasis supplied)
The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his
premature taking of the oath of citizenship.
The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his
death and at this very late date just so we can go after the son.
The petitioners question the citizenship of the father through a collateral approach. This can not be done.
In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its
nullity. (See Queto v. Catolico, 31 SCRA 52 [1970])
To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would
run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be
given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET
"Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not use
beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in
this case."
The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to
determine whether or not the HRET committed abuse of authority in the exercise of its powers. Moreover,
the respondent traces his natural born citizenship through his mother, not through the citizenship of his
father. The citizenship of the father is relevant only to determine whether or not the respondent "chose" to
be a Filipino when he came of age. At that time and up to the present, both mother and father were
Filipinos. Respondent Ong could not have elected any other citizenship unless he first formally renounced
Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of
election, there was no foreign nationality of his father which he could possibly have chosen.
There is another reason why we cannot declare the HRET as having committed manifest grave abuse of
discretion. The same issue of natural-born citizenship has already been decided by the Constitutional
Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by
that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural
born citizen by both bodies.
Assuming that our opinion is different from that of the Constitutional Convention, the Batasang
Pambansa, and the respondent HRET, such a difference could only be characterized as error. There
would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of
discretion.
What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen?
Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th
day of April 1899 and then residing in said islands and their children born subsequent thereto were
conferred the status of a Filipino citizen.
Was the grandfather of the private respondent a Spanish subject?
Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz:
ARTICLE 17. The following are Spaniards:
1. Persons born in Spanish territory.
2. Children born of a Spanish father or mother, even though they were born out of Spain.
3. Foreigners who may have obtained naturalization papers.
4. Those without such papers, who may have acquired domicile in any town in the Monarchy.
(Emphasis supplied)
The domicile of a natural person is the place of his habitual residence. This domicile, once established is
considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC;
Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949])
As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895.
Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of
Laoang, Samar. (Report of the Committee on Election Protests and Credentials of the 1971 Constitutional
Convention, September 7, 1972, p. 3)
The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn
of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property.
As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-paragraph 4 of
Article 17 of the Civil Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact
that he died in China, during one of his visits in said country, was of no moment. This will not change the
fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he
had become a Spanish subject.
If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the
Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has
been defined as one who has actual fixed residence in a place; one who has a domicile in a place.
(Bouvier's Law Dictionary, Vol. II) A priori, there can be no other logical conclusion but to educe that Ong
Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-
born Filipino.
The petitioners' sole ground in disputing this fact is that document presented to prove it were not in
compliance with the best the evidence rule. The petitioners allege that the private respondent failed to
present the original of the documentary evidence, testimonial evidence and of the transcript of the
proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was
predicated.
On the contrary, the documents presented by the private respondent fall under the exceptions to the best
evidence rule.
It was established in the proceedings before the HRET that the originals of the Committee Report No. 12,
the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot
be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty.
Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of
the U.P Law Center, in their respective testimonies given before the HRET to the effect that there is no
governmental agency which is the official custodian of the records of the 1971 Constitutional Convention.
(TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44;
TSN, February 6, 1989, pp. 28-29)
The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the
1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12,
1989, pp. 11-24)
The inability to produce the originals before the HRET was also testified to as aforestated by Atty.
Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require
the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent
search, the same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918])
Since the execution of the document and the inability to produce were adequately established, the
contents of the questioned documents can be proven by a copy thereof or by the recollection of
witnesses.
Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee
Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was presented
as a witness in the hearing of the protest against the private respondent, categorically stated that he saw
the disputed documents presented during the hearing of the election protest against the brother of the
private respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional Convention, states
that he was presiding officer of the plenary session which deliberated on the report on the election protest
against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are Mr. Chief
Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the long list
of delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not do so. Nor did
they demur to the contents of the documents presented by the private respondent. They merely relied on
the procedural objections respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that
body. The HRET by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose
Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which
they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which
the parties wished to present. Even assuming that we disagree with their conclusions, we cannot declare
their acts as committed with grave abuse of discretion. We have to keep clear the line
between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of respondent Ong.
The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has
been understood as synonymous with domicile not only under the previous Constitutions but also under
the 1987 Constitution.
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 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, in so far 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. (Records of the
1987 Constitutional Convention, Vol. 11, 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 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
and actual residence. (Records of the 1987 Constitutional Commission, Vol. 11, 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.
The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure,
one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from
said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that
person. In other words, domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147
[1966])
The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang,
Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained
fixed therein even up to the present.
The private respondent, in the proceedings before the HRET sufficiently established that after the fire that
gutted their house in 1961, another one was constructed.
Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was
built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr.,
November 18,1988, p. 8)
The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he
cannot, therefore, be a resident of said place is misplaced.
The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the
demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became
the co-owner thereof (as a co- heir), notwithstanding the fact that these were still in the names of his
parents.
Even assuming that the private respondent does not own any property in Samar, the Supreme Court in
the case of De los Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should
have a house in order to establish his residence and domicile. It is enough that he should live in the
municipality or in a rented house or in that of a friend or relative. (Emphasis supplied)
To require the private respondent to own property in order to be eligible to run for Congress would be
tantamount to a property qualification. The Constitution only requires that the candidate meet the age,
citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the
candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412
[1965])
It has also been settled that 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.
(Faypon v. Quirino, 96 Phil. 294 [1954])
As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and
later to practice his profession, There was no intention to abandon the residence in Laoang, Samar. On
the contrary, the periodical journeys made to his home province reveal that he always had
the animus revertendi.
The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution.
Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese,
Spaniards and other nationalities. This racial diversity gives strength to our country.
Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none.
To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was
part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some
Filipinos of whom we are proud were ethnically more Chinese than the private respondent.
Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one
must forever cherish.
However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an
interpretation, have to unreasonably deny it to those who qualify to share in its richness.
Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent
backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes
humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how
to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for
the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of
an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to
citizenship problems is essential.
WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the House of
Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born
citizen of the Philippines and a resident of Laoang, Northern Samar.
SO ORDERED.
Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur.

Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.
Separate Opinions
PADILLA, J., dissenting:
I dissent.
These separate petitions for certiorari and mandamus seek to annul the decision* of respondent House of
Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989 which
declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal resident of
Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying petitioners'
motions for reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not
qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who
allegedly obtained the highest number of votes among the qualified candidates, the duly elected
representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner
Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92)
not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly
elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were
among the candidates for the position of Representative or Congressman for the second district of
Northern Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed
duly-elected on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co
who obtained the next highest number of votes.
Petitioners Co and Balanquit then filed separate election protests against private respondent with the
tribunal, docketed as HRET Cases Nos. 13 and 15 respectively. Both protests raised almost the same
issues and were thus considered and decided jointly by the tribunal.
The issues raised before the tribunal were the following:
1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in

contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3),
Article IV thereof; and
2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation of

Section 6, Article VI of the same Constitution, for a period of not less than one year immediately
preceding the congressional elections of May 1987.
The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a
natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the
required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to
continue in office as Member of the House of Representatives, Congress of the Philippines, representing
the second legislative district of Northern Samar.
The factual antecedents taken from the consolidated proceedings in the tribunal are the following:
1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also known
as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now one of the
municipalities comprising the province of Northern Samar (Republic Act No. 6132 approved on
August 24, 1970 and the Ordinance appended to the 1987 Constitution).
2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on December 16,
1915. (Exhibit zz) Subsequently thereafter, he took up residence in Laoang, Samar.
3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated according to
the rites and practices of the Roman Catholic Church in the Municipality of Laoang (Exh. E).
4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born Filipino
citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E & I)
5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed his
petition for naturalization with the Court of First Instance of Samar, pursuant to Commonwealth
Act No. 473, otherwise known as the Revised Naturalization Law.
6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving the
application of Jose Ong Chuan for naturalization and declaring said petitioner a Filipino citizen
"with all the rights and privileges and duties, liabilities and obligations inherent to Filipino citizens.
(Exh. E)
7. On May 15, 1957, the same Court issued an order:
(1) declaring the decision of this Court of April 28, 1955 final and executory;
(2) directing the clerk of court to issue the corresponding Certificate of Naturalization in
favor of the applicant Ong Chuan who prefers to take his oath and register his name as
Jose Ong Chuan. Petitioner may take his oath as Filipino citizen under Ms new christian
name, Jose Ong Chuan. (Exh. F)
8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to the
Constitution and the Government of the Philippines as prescribed by Section 12 of
Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization. (Exh. G)
9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on July 25,
1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was elected
delegate from Northern Samar to the 1971 Constitutional Convention.
10. By protestee's own -testimony, it was established that he had attended grade school in
Laoang. Thereafter, he went to Manila where he finished his secondary as well as his college
education. While later employed in Manila, protestee however went home to Laoang whenever he
had the opportunity to do so, which invariably would be as frequent as twice to four times a year.
11. Protestee also showed that being a native and legal resident of Laoang, he registered as a
voter therein and correspondingly voted in said municipality in the 1984 and 1986 elections.
12. Again in December 1986, during the general registration of all voters in the country, Protestee
re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang. In his voter's
affidavit, Protestee indicated that he is a resident of Laoang since birth. (Exh. 7) 1
Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed the
present petitions.
In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision of
the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the power
and authority to act as the sole judge of all contests relating to the qualifications of the Members of the
House of Representatives.2
On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the
respondents' contentions, the Court has the jurisdiction and competence to review the questioned
decision of the tribunal and to decide the present controversy.
Article VIII, Section I of the 1987 Constitution provides that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election,
returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held
in Morrero vs. Bocar,3 construing Section 4, Article VI of the 1935 Constitution which provided that ". . .
The Electoral Commission shall be the sole judge of all contests relating to the election, returns and
qualifications of the Members of the National Assembly," that:
The judgment rendered by the (electoral) commission in the exercise of such an acknowledged
power is beyond judicial interference, except, in any event, "upon a clear showing of such
arbitrary and improvident use of the power as will constitute a denial of due process of law."
(Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral
Commission, 35 Off. Gaz., 23.)
And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is
duty-bound to determine whether or not, in an actual controversy, there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
The present controversy, it will be observed, involves more than perceived irregularities in the conduct of
a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with
great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive,
for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present
controversy, however, involves no less than a determination of whether the qualifications for membership
in the House of Representatives, as prescribed by the Constitution, have been met. Indeed, this Court
would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to
allow a person, not a natural-born Filipino citizen, to continue to sit as a Member of the House of
Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case,
the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as
to require the exercise by this Court of its power of judicial review.
Besides, the citizenship and residence qualifications of private respondent for the office of Member of the
House of Representatives, are here controverted by petitioners who, at the same time, claim that they are
entitled to the office illegally held by private respondent. From this additional direction, where one asserts
an earnestly perceived right that in turn is vigorously resisted by another, there is clearly a justiciable
controversy proper for this Court to consider and decide.
Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in
contravention of the time-honored principle of constitutional separation of powers. The Court in this
instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a
justiciable controversy, the pertinent provisions of the Constitution with finality.
It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or
statutory) interpretation, in the context of the interactions of the three branches of the
government, almost always in situations where some agency of the State has engaged in action
that stems ultimately from some legitimate area of governmental power (the Supreme Court in
Modern Role, C.B. Sevisher, 1958, p. 36).4
Moreover, it is decidedly a matter of great public interest and concern to determine whether or not private
respondent is qualified to hold so important and high a public office which is specifically reserved by the
Constitution only to natural-born Filipino citizens.
After a careful consideration of the issues and the evidence, it is my considered opinion that the
respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in
rendering its questioned decision and resolution, for reasons to be presently stated.
The Constitution5 requires that a Member of the House of Representatives must be a natural-born citizen
of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day of
the election.
Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as:
Natural-born citizens are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3), Section I hereof shall be deemed natural-born
citizen,
Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:
Section 1. The following are citizens of the Philippines:

xxx xxx xxx
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority.
The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions.
The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen.
Does private respondent fall within said definition?
To the respondent tribunal,
Protestee may even be declared a natural-born citizen of the Philippines under the first sentence
of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to perform any act to
acquire or perfect his Philippine citizenship." It bears to repeat that on 15 May 1957, while still a
minor of 9 years he already became a Filipino citizen by declaration of law. Since his mother was
a natural-born citizen at the time of her marriage, protestee had an inchoate right to Philippine
citizenship at the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA
473 that he was a Filipino citizen retroacted to the moment of his birth without his having to
perform any act to acquire or perfect such Philippine citizenship.6
I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show
that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen,
and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth,
private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then
a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at
the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the
Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had
to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino
citizens.7
Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935
Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese
citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private
respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his
reaching the age of majority.
While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized
citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically
become Filipino citizens,8 this does not alter the fact that private respondent was not born to a Filipino
father, and the operation of Section 15 of CA 473 did not confer upon him the status of a natural-
born citizen merely because he did not have to perform any act to acquire or perfect his status as
a Filipino citizen.
But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue
of the operation of CA 473, petitioners however contend that the naturalization of private respondent's
father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino
citizen.
Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of
naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's
naturalization is barred in an electoral contest which does not even involve him (Ong Chuan).
Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's
naturalization must emanate from the Government and must be made in a proper/appropriate and direct
proceeding for de-naturalization directed against the proper party, who in such case is Ong Chuan, and
also during his lifetime.
A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under
the principle of res judicata.9 Section 18 of CA 473 provides that a certificate of naturalization may be
cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or by
the proper provincial fiscal.
In Republic vs. Go Bon Lee,10 this Court held that:
An alien friend is offered under certain conditions the privilege of citizenship. He may accept the
offer and become a citizen upon compliance with the prescribed conditions, but not otherwise. His
claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with
the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the
terms upon which alone the right he seeks can be conferred. It is his province, and he is bound,
to see that the jurisdictional facts upon which the grant is predicated actually exist and if they do
not he takes nothing by this paper grant.
xxx xxx xxx
Congress having limited this privilege to a specified class of persons, no other person is entitled
to such privilege, nor to a certificate purporting to grant it, and any such certificate issued to a
person not so entitled to receive it must be treated as a mere nullity, which confers no legal rights
as against the government, from which it has been obtained without warrant of law.
"Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting
nature, affecting public interest of the highest order, and which may be enjoyed only under the precise
conditions prescribed by law therefor."11
Considering the legal implications of the allegation made by the petitioners that the naturalization of
private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said
naturalization proceedings. This course of action becomes all the more inevitable and justified in the
present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. 12
It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his
father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which
private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its
source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void
naturalization of his father, would constitute or at least sanction a continuing offense against the
Constitution.
The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the
Constitution and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15
May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate
of Naturalization and for the applicant to take the oath of allegiance.
However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who
has previously obtained a decision favorable to his application for naturalization, is appealable. It is,
therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and
before the expiration of the reglementary period to perfect any appeal from said order.13
In Cua Sun Ke vs. Republic,14 this Court held that:

Administration of the oath of allegiance on the same day as issuance of order granting citizenship
is irregular and makes the proceedings so taken null and void. (Republic vs. Guy, 115 SCRA 244
[1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil. 1381).
It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private
respondent's father) was null and void. It follows that the private respondent did not acquire any legal
rights from the void naturalization of his father and thus he cannot himself be considered a Filipino citizen,
more so, a natural-born Filipino citizen.
But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of
naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable,
the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of
private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or
perfection of the status of a natural-born Filipino citizen.
Let us now look into the question of whether or not private respondent acquired the status of a natural-
born Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen.
This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987
Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same
Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon
reaching the age of majority. The right or privilege of election is available, however, only to those born to
Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January
1973.
The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused
its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the
status of "natural-born" Filipino citizen on those who elect Philippine citizenship — all in its strained effort,
according to petitioners, to support private respondent's qualification to be a Member of the House of
Representatives.15
Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987
Constitution contemplates that only the legitimate children of Filipino mothers with alien father, born
before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship)
after the effectivity of the 1987 Constitution are entitled to the status of natural-born Filipino citizen.16
The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found reason
to refer to the interpellations made during the 1986 Constitutional Commission. It said:
That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987 Constitution was
(sic) intended by its (sic) framers to be endowed, without distinction, to all Filipinos by election
pursuant to the 1935 Constitution is more than persuasively established by the extensive
interpellations and debate on the issue as borne by the official records of the 1986 Constitutional
Commission.17
Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the case
at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect
Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding
the meaning of the constitutional provisions in question.
I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the
1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and
even nebulous constitutional provisions. Thus —
The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should
be given effect. The primary task in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the people in the adoption of the
Constitution. It may also be safely assumed that the people in ratifying the constitution were
guided mainly by the explanation offered by the framers. 18
The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to
Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to
Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of
the 1987 Constitution, are to be considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treñas specifically asked

Commissioner Bernas regarding the provisions in question, thus:
MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and
Human Rights has more or less decided to extend the interpretation of who is a natural-born
Filipino citizen as provided in Section 4 of the 1973 Constitution, by adding that persons who
have elected Philippine citizenship under the 1935 Constitution shall be considered natural-born.
Am I right, Mr. Presiding Officer?
FR BERNAS: Yes.
MR. TRENAS: And does the Commissioner think that tills addition to Section 4 of the 1973
Constitution would be contrary to the spirit of that section?
FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But whether it is
contrary to the spirit is something that has been debated before and is being debated even now.
We will recall that during the 1971 Constitutional Convention, the status of natural-born
citizenship of one of the delegates, Mr. Ang, was challenged precisely because he was a citizen
by election. Finally, the 1971 Constitutional Convention considered him a natural-born citizen,
one of the requirements to be a Member of the 1971 Constitutional Convention. The reason
behind that decision was that a person under his circumstances already had the inchoate right to
be a citizen by the fact that the mother was a Filipino. And as a matter of fact, the 1971
Constitutional Convention formalized that recognition by adopting paragraph 2 of Section 1 of the
1971 Constitution. So, the entire purpose of this proviso is simply to perhaps remedy whatever
injustice there may be so that these people born before January 17, 1973 who are not naturalized
and people who are not natural born but who are in the same situation as we are considered
natural-born citizens. So, the intention of the Committee in proposing this is to equalize their
status.19
When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to
Commissioner Azcuna thus:
MR. AZCUNA: With respect to the proviso in Section 4, would this refer only to those who elect
Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who
elected it under the 1935 Constitution?
FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue of the
provision of the 1935 Constitution, whether the election was done before or after 17 January
1973.20
And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear
as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus:
MR. RODRIGO: The purpose of that proviso is to remedy an inequitable situation. Between 1935
and 1973, when we were under the 1935 Constitution, those born of Filipino fathers but alien
mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers
would have to elect Philippine citizenship upon reaching the age of majority; and, if they do elect,
they become Filipino citizens, yet, but not natural-born Filipino citizens.
The 1973 Constitution equalized the status of those born of Filipino mothers and those born of Filipino
fathers. So that from January 17, 1973 when the 1973 Constitution took effect, those born of Filipino
mothers but of alien fathers are natural-born Filipino citizens. Also, those who are born of Filipino fathers
and alien mothers are natural-born Filipino citizens.
If the 1973 Constitution equalized the status of a child born of a Filipino mother and that born of a Filipino
father, why do we not give a chance to a child born before January 17, 1973, if and when he elects
Philippine citizenship, to be in the same status as one born of a Filipino father — namely, natural-born
citizen.
Another thing I stated is equalizing the status of a father and a mother vis-a-vis the child. I would like to
state also that we showed equalize the status of a child born of a Filipino mother the day before January
17, 1973 and a child born also of a Filipino mother on January 17 or 24 hours later. A child born of a
Filipino mother but an alien father one day before January 17, 1973 is a Filipino citizen, if he elects
Philippine citizenship, but he is not a natural-born Filipino citizen. However, the other child who luckily
was born 24 hours later — maybe because of parto laborioso — is a natural-born Filipino citizen.21
It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born
Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children
becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973
Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse)
are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still
elect Philippine citizenship upon their reaching the age of majority, in order to be deemed natural-born
Filipino citizens. The election, which is related to the attainment of the age of majority, may be made
before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental
purpose of the Constitution which is to protect and enhance the people's individual interests, 22 and to
foster equality among them.
Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother
(with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained
the age of majority), or soon thereafter, in order to have the status of a natural-born Filipino citizen under
the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As
earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling of
the respondent tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an alien father had exercised the right of suffrage
when he came of age, the same constitutes a positive act of election of Philippine citizenship.
(Florencio vs. Mallare) [sic] The acts of the petitioner in registering as a voter, participating in
elections and campaigning for certain candidates were held by the Supreme Court as sufficient to
show his preference for Philippine citizenship. Accordingly, even without complying with the
formal requisites for election, the petitioner's Filipino citizenship was judicially upheld.23
I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to
amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine
citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act
mandate that the option to elect Philippine citizenship must be effected expressly not impliedly.
The respondent tribunal cites In re: Florencio Mallare25 which held that Esteban Mallare's exercise of the
right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship.
Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine
citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban
Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and,
more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took
effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the presentation of a formal deed to that effect considering
that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no particular proceeding
was required to exercise the option to elect Philippine citizenship, granted to the proper party by
Section 1, subsection 4, Article IV of the 1935 Philippine Constitution.26
Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate (natural)
child of a Filipino mother and thus followed her citizenship. I therefore agree with the petitioners'
submission that, in citing the Mallare case, the respondent tribunal had engaged in an obiter dictum.
The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law,
providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his
father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the
naturalization of private respondent's father was valid, and that there was no further need for private
respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did
not mean that the operation of the Revised Naturalization Law amounted to an election by him of
Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship
derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority.
There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon
reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625.
Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV
of the 1987 Constitution.
Based on all the foregoing considerations and premises, I am constrained to state that private respondent
is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987
Constitution in relation to Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to
be a Member of the House of Representatives.
At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the
Constitution requires that a Member of the House of Representatives must be both a natural-born Filipino
citizen and a resident for at least one (1) year in the district in which he shall be elected.
The next question that comes up is whether or not either of the petitioners can replace private respondent
as the Representative of the second legislative district of Northern Samar in the House of
Representatives.
I agree with respondent tribunal that neither of the petitioners may take the place of private respondent in
the House of Representatives representing the second district of Northern Samar. The ruling of this Court
in Ramon L. Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L.
Lardizabal,27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition,
could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason 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 for mayor of that City.
A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo
warranto proceeding even if it is labelled an election protest.28 It is a proceeding to unseat the ineligible
person from office but not necessarily to install the protestant in his place.29
The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible
candidate in an election does not entitle the candidate receiving the next highest number of votes to be
declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30
Sound policy dictates that public elective offices are filled by those who have the highest number
of votes cast in the election for that office, and it is a 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 election. (20 Corpus Juris 2nd,
S 243, p. 676).
As early as 1912, this Court has already declared that the candidate who lost in an election
cannot be proclaimed the winner in the event that the candidate who won is found ineligible for
the office to which he was elected. This was the ruling in Topacio v. Paredes (23 Phil. 238) —
Again, the effect of a decision that a candidate is not entitled to the office because of
fraud or irregularities in the election is quite different from that produced by declaring a
person ineligible to hold such an office. . . . If it be found that the successful candidate
(according to the board of canvassers) obtained a plurality in an illegal manner, and that
another candidate was the real victor, the former must retire in favor of the latter. In the
other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be
transferred from an ineligible to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots. . . . 31
The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino
citizen, in relation to the present case.
Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same
father and mother.
Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that Emil
L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by analogy,
he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will now be
shown, flawed and not supported by the evidence. Not even the majority decision of the electoral tribunal
adopted the same as the basis of its decision in favor of private respondent. The tribunal, in reference to
this submission, said:
Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship based on
an entirely different set of circumstances, apart from the indisputable fact that the matters
attempted to be brought in issue in connection therewith are too far removed in point of time and
relevance from the decisive events relied upon by the Tribunal, we view these two issues as
being already inconsequential.33
The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship by
naturalization of private respondent's father (Ong Chuan) and on the alleged election of Philippine
citizenship by private respondent.
Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers
EP-07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong,
contesting his citizenship qualification. The Committee on Election Protests Credentials of the 1971
Contitution Convention heard the protests and submitted to the Convention a report dated 4 September
1972, the dispositive portion of which stated:
It appearing that protestee's grandfather was himself a Filipino citizen under the provisions of the
Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898, thus conferring upon
protestee's own father, Ong Chuan, Philippine citizenship at birth, the conclusion is inescapable
that protestee himself is a natural-born citizen, and is therefore qualified to hold the office of
delegate to the Constitutional Convention.34
On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election
protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election
Protests and Credentials.35
It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L.
Ong is, to say the least, inconclusive to the case at bar, because —
a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the
1935 Constitution; the present case, on the other hand involves the 1987 Constitution:
b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the

Philippines; the 1987 Constitution contains a precise and specific definition of a "natural-born
citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not qualify under
such definition in the 1987 Constitution;
c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of
a political body, not a court of law. And, even if we have to take such a decision as a decision of
a quasi-judicial body (i.e., a political body exercising quasi-judicial functions), said decision in the
Emil L. Ong case can not have the category or character of res judicata in the present judicial
controversy, because between the two (2) cases, there is no identity of parties (one involves Emil
L. Ong, while the other involves private respondent) and, more importantly, there is no identity of
causes of action because the first involves the 1935 Constitution while the second involves the
1987 Constitution.
But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted
before the electoral tribunal and, therefore, also before this Court, does not support the allegations made
by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private respondent
in the present controversy. This leads us to an interesting inquiry and finding.
The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the
Philippines under the 1935 Constitution laid stress on the "fact" — and this appears crucial and central to
its decision — that Emil L. Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of
1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became
natural-born Filipinos. The 1971 Constitutional Convention said:
Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April 11,
1899 and was therefore one of the many who became ipso facto citizens of the Philippines under
the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the
Philippine Islands who continued to reside therein and who were Spanish subjects on April 11,
1899 as well as their children born subsequent thereto, "shall be deemed and held to be citizens
of the Philippine Islands." (Section 4, Philippine Bill of 1902).36
The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te
private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to
reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the
Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen.
Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits
W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years
1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to
have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House
Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management
and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos"
for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to
prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue
residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of
these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR
COUNTERVAILING EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of
Emil L. Ong, previously discussed.
It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal
skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of
1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did
not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the
Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization.
Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer
have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the
1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the
Philippine Bill of 1902. The tribunal had to look into the question because the finding that Ong Te had
become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but
as held in Lee vs. Commissioners of Immigration:37
. . . Everytime the citizenship of a person is material or indispensable in a judicial or

administrative case, whatever the corresponding Court or administrative authority decides therein
as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed
out again and again as the occasion may demand.
Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No.
67201, 8 May 1984.1âwphi1 In connection with said resolution, it is contended by private respondent that
the resolution of the 1971 Constitutional Convention in the Emil L. Ong case was elevated to this Court on
a question involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and
that, according to private respondent, this Court allowed the use of the Committee Report to the 1971
Constitutional Convention.
To fully appreciate the implications of such contention, it would help to look into the circumstances of the
case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto
Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a
petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 84-
69 contending that Ong is not a natural-born citizen. Ong filed a motion to dismiss the petition on the
ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of
the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No.
67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with
this Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the
COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining
respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto
Del Valle vs. Emil Ong (SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction, and
considering that at the hearing this morning, it was brought out that the 1971 Constitutional
Convention, at its session of November 28, 1972, after considering the Report of its Committee
on Election Protests and Credentials, found that the protest questioning the citizenship of the
protestee (the petitioner herein) was groundless and dismissed Election Protests Nos. EP 07 and
EP 08 filed against said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session
as well as of the said Committee's Report having been duly admitted in evidence without
objection and bears out, for now, without need for a full hearing, that petitioner is a natural-born
citizen, the Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction
enjoining respondent COMELEC from holding any further hearing on the disqualification case
entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this
afternoon, or any other day, except to dismiss the same. This is without prejudice to any
appropriate action that private respondent may wish to take after the elections. (emphasis
supplied)
It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a
hearing on the merits either by the Court or by the COMELEC and merely on the basis of a Committee's
Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not
foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections.
It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention
recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or
further proceeding in regard to the same question and that, consequently, there is no vested right of Emil
L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution
but the 1987 Constitution whose provisions were never considered in all such proceedings because the
1987 Constitution was still inexistent.
A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest
number of votes for the elective position of Representative (Congressman) to the House of
Representatives for the second district of Northern Samar, would have had to cease in office by virtue of
this Court's decision, if the full membership of the Court had participated in this case, with the result that
the legislative district would cease to have, in the interim, a representative in the House of
Representatives. But the fundamental consideration in cases of this nature is the Constitution and only
the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district
of Northern Samar cast the majority of their votes for private respondent, they assumed and believed that
he was fully eligible and qualified for the office because he is a natural-born Filipino citizen. That
erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution.
This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of
Representatives should be "natural-born citizens of the Philippines". The voting majority of the present
Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in
effect, says, "even aliens will do as well."
WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is,
NOT a natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the
House of Representatives, Congress of the Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.

I concur with the majority.
(1)
I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme
Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of
the House of Representatives, as the "sole judge" of all contests relating to the membership in the House,
as follows:
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of Representatives, as the case may
be, who shall be chosen on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.1
is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better.
In the case of Aratuc v. Commission on Elections,2 it was held that this Court can not review the errors of
the Commission on Elections (then the "sole judge" of all election contests) — in the sense of reviewing
facts and unearthing mistakes — and that this Court's jurisdiction is to see simply whether or not it is
guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers
on the Court,3 but as the Charter states, our authority is "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."4 It is not to review facts.
"Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of
jurisdiction, or otherwise, to denial of due process of law.5
I find none of that here.
As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but
certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion
because the majority has begged to differ. It does not form part of the duty of the Court to remedy all
imagined wrongs committed by the Government.
The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and
consequently, is possessed of the qualifications to be a member of the House. As the sole judge,
precisely, of this question, the Court can not be more popish than the pope.
(2)
I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It
is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional
Convention Committee6 on Election Protests and Credentials, in which the Committees upheld the
citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother.
According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having complied
with the requirements on Filipinization by existing laws for which his successors need not have elected
Filipino citizenship. I quote:
xxx xxx xxx
There is merit in protestee's claim. There can hardly be any doubt that Ong Te protestees's
grandfather, was a Spanish subject residing in the Philippines on April 11, 1899, and was
therefore one of the many who became ipso facto citizens of the Philippines under the provisions
of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine
Islands who continued to reside therein and who were Spanish subjects on April 11, 1899, as well
as their children born subsequent thereto, "shall be deemed and held to be citizens of the
Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule were
Spanish subjects who shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only
Spanish subjects who were natives of Peninsular Spain had the privilege of preserving their
Spanish nationality.7
xxx xxx xxx
xxx xxx xxx
As earlier noted, protestee's grandfather established residence in the Philippines in 1895, as

shown by the Registro Central de Chinos. He was also issued a certificate of registration. He
established a business here, and later acquired real property. Although he went back to China for
brief visits, he invariably came back. He even brought his eldest son, Ong Chuan, to live in the
Philippines when the latter was only 10 years old. And Ong Chuan was admitted into the country
because, as duly noted on his landing certificate, his father, Ong Te had been duly enrolled under
CR 16009-36755 — i.e., as a permanent resident. Indeed, even when Ong Te went back to
China in the 1920's for another visit, he left his son, Ong Chuan, who was then still a minor, in the
Philippines — obviously because he had long considered the Philippines his home. The domicile
he established in 1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as
already adverted to, a domicile once acquired is not lost until a new one is gained. The only
conclusion then can thus be drawn is that Ong Te was duly domiciled in the Philippines as of April
11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 — and was,
consequently, a Spanish subject, he qualified as a Filipino citizen under the provisions of Section
4 of the Philippine Bill of 1902.8
It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that he
was, all along, a Chinese citizen, but as the Report held:
Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan
(protestee's father), appear to have been registered as Chinese citizens even long after the turn
of the century. Worse, Ong Chuan himself believed the was alien, to the extent of having to seek
admission as a Pilipino citizen through naturalization proceedings. The point, to our mind, is
neither crucial nor substantial. Ong's status as a citizen is a matter of law, rather than of personal
belief. It is what the law provides, and not what one thinks his status to be, which determines
whether one is a citizen of a particular state or not. Mere mistake or misapprehension as to one's
citizenship, it has been held, is not a sufficient cause or reason for forfeiture of Philippine
citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too,
estoppel applies only to questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28,
1957).9
It is to be noted that the Report was unanimously approved by the Committee, and on November 28,
1972, approved without any objection by the Convention in plenary session. 10
I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from
experience, because when the Convention approved the Report in question, I was one of its vice-
presidents and the presiding officer.
It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's
qualification to sit as member of the defunct Batasang Pambansa)11 in which this Court allowed the use of
the Committee Report.
Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a
settled matter. Let it rest.
It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this
Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce
for the gander.
I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of 267
delegates, indeed, also of this Court.
SUPREME COURT
Manila
EN BANC
G.R. No. L-58289 July 24, 1982
VALENTINO L. LEGASPI, petitioner,
vs.
THE HONORABLE MINISTER OF FINANCE and THE HONORABLE COMMISSIONER and/or THE BUREAU
OF INTERNAL REVENUE; respondents.
BARREDO, J.:
Petition filed by the Honorable Valentino L. Legaspi, incumbent member of the interim Batasang
Pambansa, praying that this Court declare Presidential Decree 1840 "granting tax amnesty and filing of
statement of assets and liabilities and some other purposes" unconstitutional.
The petition contains the following allegations:
5. That said decree was issued by the President under supposed legislative powers granted him
under Amendment No. 6 of the Constitution proclaimed in full force and effect as of October 27, 1976
pursuant to Proclamation No. 1595 and which is quoted as follows:
Whenever in the Judgment of the President, there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment requires immediate action,
he may in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction,
which shall form part of the law of the land.
6. That said decree was promulgated despite the fact that under the Constitution "(T)he legislative
power shall be vested in a Batasang Pambansa" (Sec. 1, Article VIII) and the President may grant
amnesty only with concurrence of the Batasang Pambansa (Sec. 11, Art. VII);
7. That Amendment No. 6 is not one of the powers granted the President by the Constitution as
amended in the plebiscite of April 7, 1981; that while Section 16 of Art. VII of the Constitution
provides:
All powers vested in the President of the Philippines under the 1935 Constitution and the laws of the
land which are not herein provided for on conferred upon any official shall be deemed and are hereby
vested in the President unless the Batasang Pambansa provides otherwise.
such re-confirmation of existing powers did not mean to include the President's legislative powers
under Amendment No. 6: by "the laws of the land which are not herein provided for or conferred upon
any official" only those laws that have been passed by the existing and/or prior legislature are
intended;
8. That the Respondents are intending and in fact implementing the provisions of the questioned
decree and the same tends to affect all taxpayers in the Philippines including herein Petitioner; that
he is now in a quandary on whether to take advantage of the benefits of said decree since the same
is of doubtful constitutionality leaving him no protection as guaranteed by the decree and thus subject
him to prosecution for violation of which otherwise would have held him immune under said decree;
9. That as a member of the Batasang Pambansa he knows that the subject of the questioned decree
has not been brought to the attention of the Batasang Pambansa requiring immediate attention, the
fact being that the original tax amnesty decree which the questioned decree amended or modified
has long been effective and implemented by the Respondents while the Batasang Pambansa was in
session;
10. That Presidential Decree No. 1840 is patently null and void having been passed without the
concurrence of the Batasang Pambansa and it is likewise of public interest and of the nation that the
question of whether the President retained his legislative power after lifting Martial Law and after the
Constitution was amended on April 7, 1981 be resolved;
11. That the questioned decree being the first dated after the lifting of Martial Law and the April 7
amendments brings to test the validity of the exercise of standby emergency powers invoked in
Amendment No. 6. (Pp. 3-6, record.)
As the petitioner himself puts it in his memorandum, the issue is: Whether the 1973 Constitution as
amended by Plebiscite-Referendum of 1976, retained the same amendments, more particularly
Amendment No. 6, after it was again amended in the Plebiscite held on April 7, 1981?
On the issue thus formulated by petitioner, it is maintained that "Amendment No. 6 is rendered
inoperable, deleted and/or repealed by the amendments of April 7, 1981". Opening his discussion of this
proposition thus:
Amendment No. 6 as originally submitted to the people for ratification under Pres. Dec. No. 1033, and
thereafter approved reads as follows:
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the Interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the necessary decrees,
orders, or letters of instruction, which shall form part of the law of the land.
Whether the matter or that there was an exigency which required immediate action let it be conceded
that in the judgment of the President such facts do exist. (Emphasis ours)
It is to be observed that the original text mentions President (Prime Minister). This is so because
under No. 3 of the same amendment,
... The incumbent President of the Philippines shall be the Prime Minister and he shall continue to
exercise all his powers even after the interim Batasang Pambansa is organized and ready to
discharge its functions, and likewise he shall continue to exercise his powers and prerogatives under
the 1935 Constitution and the powers vested in the President and the Prime Minister under this
Constitution.
Parenthetically, the term "Incumbent President" employed in the transitory provisions could only refer
to President Ferdinand E. Marcos (Aquino vs. Commission on Elections, 62 SCRA 275).
After the April 7 amendments there exists no longer "a President (Prime Minister)" but "A
President"and "A Prime Minister." They are now two different offices which cannot be held by a single
person — not a transitory one but a regular one provided for and governed by the main provisions of
the newly amended Constitution. Subsequent events accept the reality that we are no longer
governed by the transitory provisions of the Constitution. (Pp. 27-28, Record.)
petitioner rationalizes his affirmative position thereon this wise:
Is Amendment No. 6 of the 1973 Constitution as approved in 1976 reproduced or unaffected by the
April 7, 1981 amendment? Or, is it considered repealed by Omission?
The Constitutional provisions of the Presidency do not restate the provisions of Amendment No. 6
which grants the President (Prime Minister) limited powers to legislate. This is tantamount to a
withdrawal or deletion of such grant.
There is no way by which the incumbent President be referred to anymore as the "incumbent
President" in the amendment of 1976. While it is true that Amendment No. 6 fails to distinguish
between "incumbent" and "regular" all provisions with reference to the powers of the Presidency is
deemed foreclosed by Article VII of the newly amended Constitution. Article VII enumerates
presidential powers. To construe that the 1976 Amendments are still applicable, other than that
referring to the Interim Batasang Pambansa would be an incompatibility to the application of the
present constitutional provisions.
Generally taken, the 1976 amendments are amendments to the transitory provisions of the
Constitution. Insofar as the office of the President or the Prime Minister is concerned they have
ceased to be governed by the transitory provisions but under the newly amended Constitution.
Batas Pambansa Blg. 125 called for the election of a President under the newly amended
Constitution. President Marcos ran as candidate and was proclaimed the duly elected President of
the Philippines by resolution no. 2 of the Batasang Pambansa dated June 21, 1981. He took his oath
of office as the duly elected President. The Prime Minister, the Members of the Cabinet and the
Executive Committee took their oaths after having been appointed and are now exercising their
functions pursuant to the new provisions. We even consider ourselves the Fourth Republic because
of a new system of government. What particular part of the newly amended Constitution would
Amendment No. 6 fit in?
President Ferdinand E. Marcos ceased to be the incumbent resident referred to in the transitory
provisions or in the 1976 amendments. The Solicitor General argued that Amendment No. 6 provided
for the contingency that the office would be separated consisting of a ceremonial President and a
Prime Minister who will be he executive. Yet, without express constitutional grant the President now
assumes a power intended to be that of the Prime Minister. The intent of the 1981 amendments could
not be interpreted any other way except that after the amendment it would no longer be proper to
exercise those reposed upon the Prime Minister. Powers previously reposed upon the Prime Minister
were expressly removed from him and given to the President. Amendment No. 6 is not one of those.
The proposed amendments under Batasan . No. 104 became Question No. 1 in the ballot of April 7,
1981 plebiscite to which the voter was asked (B.P. Blg. 122):
Do you vote for the approval of an amendment to the Constitution and to Amendment No. 2, as
proposed by the Batasang Pambansa in Resolution No. 2, which, in substance, calls for the
establishment of a modified parliamentary system, amending for this purpose Articles VII, VIII and IX
of the Constitution, with the following principal features: ...
Nowhere in feature (1) was it submitted that the President would enjoy conditional or qualified
legislative powers as modified parliamentary system.
The original intent to set out the original act or section as amended is most commonly indicated by a
statement in the amendatory act that the original law is amended to "read as follows." The new
statute is a substitute for the original act or section. Only those provisions of the original act or section
repeated in the amendment are retained (Paras vs. Land Registration Commission, July 26, 1960, L-
16011).
That "The Legislative power shall be vested in the Batasang Pambansa" is an old provision which has
been retained. This in essence was Question No. 1 in the April 7 Plebiscite as to who exercise
legislative powers and who are to execute. Nowhere in the approved Amendment can it be hinted that
the hybrid-type of government also includes a one-man legislature. The intent to repose legislation
only upon the Batasan is very apparent. The adoption of the new Constitution repeals and
supersedes all the provisions of the older one not continued in force by the new instrument (16 C.J.S.
88). (Pp. 30-33, Record.)
After mature study and deliberation and considering the peculiar circumstances that dictated the
formulation of Amendment No. 6, the Court's conclusion is, that Assemblyman-Petitioners posture lacks,
to say the least, sufficient merit.
Constitutional law is not simply the literal application of the words of the Charter. The ancient and familiar
rule of constitutional construction that has consistently maintained its intrinsic and transcendental worth is
that the meaning and understanding conveyed by the language, albeit plain, of any of its provisions do
not only portray the influence of current events and developments but likewise the inescapable imperative
considerations rooted in the historical background and environment at the time of its adoption and thereby
caused their being written as part and parcel thereof. As long as this Court adheres closest to this
perspective in viewing any attack against any part of the Constitution, to the end of determining what it
actually encompasses and how it should be understood, no one can say We have misguided Ourselves.
None can reasonably contend We are treading the wrong way.
True enough Article VIII, Sec. 1 of the Philippine Constitution as amended in 1981 explicitly ordains that
"(T)he legislative power shall be vested in a Batasang Pambansa". Section 2, however, readily reveals
that the Batasang Pambansa contemplated in that Section 1 is the regular assembly (formerly referred to
as National Assembly, now as Batasang Pambansa — evidently to indigenize the nomenclature, which,
incidentally should have been done also with the Pangulo and Pangunang Ministro), to be elected in May
1984, per Sec. 5(1) of the same Article. Thus, to begin with, in the instant case, We must keep in mind
that at least for the present and until 1984, what can be properly discussed here are only the legislative
powers of the interim Batasang Pambansa as such.
Without intending any reflection on any of those responsible for the Idea, it may be that it is for non-
essential reasons that the current legislative assembly is being referred to generally simply as the
Batasang Pambansa. For in legal truth and in actual fact, and as expressly admitted by petitioner, it is
inherently no more no less than the same interim. Batasang Pambansa created by Amendment No. 2 by
virtue of the Referendum-Plebiscite of October 16-17, 1976. And, in this connection, it may be observed
that indubitably, and as a necessary and logical consequence, the amendment of Amendment No. 2 in
1981 carried with it the corresponding appropriate adjustments literal and otherwise of Amendment Nos.
3 and 4, although these latter two were not specifically mentioned in the proposal pursuant to BP-CA
Resolution No. 4 of the Batasan, acting as a constituent body nor in the Plebiscite Referendum Act itself,
much less in the ballots presented to and used by the voters. This is because it cannot be denied that
Amendments 3 and 4 are by their very nature inseparable parts of amendment No. 2.
But examining closely how the 1981 amendments altered Amendment No. 2, it will be readily seen that
the only change consisted of the non-inclusion of the "incumbent President" as member of the assembly
in pursuance of the fundamental objective to separate the Presidency from the regular legislative body
and thereby establish in our country a modified form of parliamentary government more appropriate for
and suitable to the peculiar conditions of our political development and the idiosyncrasies of our people,
and at the same time introduce into it features that would strengthen its structure so as to enable the
government to cope with emergencies or abnormal situations, not only like those that presently exist but
even those that might arise in the future. Thus, it is characterized with a presidency more powerful than
the idea of a strong President desired by President Quezon and actually embodied in the 1935
Constitution.
It is, therefore, evident that the reference to Amendment No. 2 in the amendments of 1981 was not
intended at all to convert or upgrade the present existing assembly into the regular Batasang Pambansa.
To repeat, what we have now is still the interim Batasang Pambansa created in 1976. Importantly, it must
be said that had the present Batasan, acting as a constituent body, ever thought of making itself the
regular National Assembly, the very odious spectacle that the people rejected when in the referendum of
January 10-15, 1973 they repulsed and repudiated theinterim National Assembly provided for in Sections
1 and 2 of Article XVII (Transitory Provisions) of the 1973 Constitution whereby the members of the old
Congress of the Philippines made themselves automatically members of the interim assembly would have
resuscitated, and we can readily imagine how the reaction of our people would have been exactly the
same as in 1973 and for sure the 1981 proposed constitutional amendment affecting the Batasang would
again have been denied sanction by our people.
Having arrived at the ineludible that the present Batasan is still interim, it also ineluctably follows that its
legislative authority cannot be more exclusive now after 1981 amendments than when it was originally
created in 1976. Thus even as the interim Batasan which came into being "in lieu of the Interim National
Assembly" by virtue of Amendment No. 2 consequently acquired "the same powers and its Members —
the same functions, responsibilities, rights and privileges, and disqualifications as the regular National
Assembly and the members thereof", there can be no question that coeval with the creation of
the interim Batasan, Amendment No. 6 came into force and effect. And Amendment No. 6 mandates in
unequivocal and unambiguous terms the grant of concurrent legislative authority to an official (the
President [Prime Minister]) who is not in the Batasan itself.
In brief, the inexorable logic of the events that brought forth the present Batasan leads to no other
conclusion than that the legislative authority vested in it by Amendment No. 2, read together with Section
1, Article XVII and Section 1, of Article VIII of the 1973 Constitution, is subject to the external concurrent
legislative prerogative that Amendment No. 6 vests on the "President (Prime Minister)."
Actually, the insistence of petitioner that Amendment No. 6 has been repealed by the 1981 amendments
springs from another point of view. It is fundamentally based on analysis and ratiocination related to the
language and tenor thereof. Petitioner maintains that said amendments vested extraordinary legislative
powers on "the President (Prime Minister)" and on nobody else, and since there is no one who is
President (Prime Minister) under our present governmental set-up pursuant to 1981 amendments, no one
in the existing government can exercise said powers.
The persuasive force of such theory is more apparent than real. As We have said earlier, the Constitution
is not merely a literal document to be always read according to the plain and ordinary signification of its
words. Beneath and beyond the literal terms of the Charter, like a mine of incalculably immense
treasures, are elements and factors radiating from political and economic developments of the situation
prevailing at the time of the inclusion of any particular provision thereof or amendment thereto. It is only
from the light of the implications of such elements and factors that the real essence and significance of
the words of the constitutional provision under scrutiny can be properly and adequately seen and
comprehended.
With reference to Amendment No. 6, it is of decisive importance that anyone who would try to decipher its
true import should be acquainted with its ration d'tre, i.e., the whys and the wherefores thereof. Contrary
to the imputations of petitioner, this amendment is not rooted in the authoritarian, much less dictatorial
tendencies or inclinations of anyone. Any tinge or tint of authoritarianism in it is not there for the sake of
the Ideology of dictatorship or authoritarian itself. Such hue of a one-man authoritarianism it somehow
connotes is there only because it is so dictated by paramount considerations that are needed in order to
safeguard the very existence and integrity of the nation and all that it stands for. Perhaps the truism—
almost a dogma—well recognized by constitutionalists and political scientists of all persuasions as a
convenient pragmatic rule for survival of nations, namely, that in an emergency, the best form of
government is a dictatorship, might have been in the mind of those who formulated it, but it is quite
obvious, as will be explained anon, that other fundamental factors must have been taken into account in
order precisely to minimize the rigors and generally feared oppressiveness of a dictatorship in an
unrestricted martial regime, its being dubbed as martial law "Philippine style" notwithstanding.
At this juncture, it must be emphatically made clear that explicitly the power that Amendment No. 6 vests
upon the "President (Prime Minister)" are to be exercised only on two specified occasions, namely, (1)
"when in (his judgment) a grave emergency exists or there is a threat or imminence thereof" and (2)
"whenever the interim Batasang Pambansa or the regular National Assembly (now regular Batasang
Pambansa) fails or is unable to act adequately on any matter for any reason that in his judgment requires
immediate action." The power is to "issue necessary decrees, orders, or letters of instruction which shall
form part of the law of the land." As the tenor of the amendment readily imparts, such power may be
exercised even when the Batasan is in session. Obviously, therefore, it is a power that is in the nature of
the other Powers which the Constitution directly confers upon the President or allows to be delegated to
him by the Batasan in times of crises and emergencies.
Indeed, it is but fitting and proper that in framing the fundamental law of the land which sets up a form of
government and defines and delimits the powers thereof and its officers, reserving as they must plenary
sovereignty to themselves, the people should prudently provide what powers may and should be
exercised by the government and/or its officials in times of crises and emergencies that could jeopardize
the very life and/or territorial integrity of the country. Even as individual rights and liberties are valued and
enshrined as inviolable, the people, as they write their Charter thru a convention or other legitimate
means, cannot ignore that in the event of war, insurrection, rebellion or invasion, including any other
critical situation, any one of which cannot but affect the regular course of normal constitutional processes
and institutions as well as the prerogatives and freedoms of individual citizens of and inhabitants within
the country, appropriate protective, defensive and rehabilitative measures must be provided therein and
may be made to function or operate.
Accordingly, both in the 1935 Constitution of the Philippines and in that of 1973, the following provisions
were precisely intended to operate during such perilous situations:
1. In times of war or other national emergency, the Batasang Pambansa may by law authorize the
President for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of
the Batasang Pambansa, such powers shall cease upon its next adjournment. The 1935 version of this
provision differs from it in that what was granted to the President was not the broad authority "to exercise
such powers necessary and proper" but only to issue rules and regulations purported to accomplish the
same objective.
2. Section 10(2) of Article VII of the 1935 Constitution provided thus:
... (2) The President shall be commander-in-chief of all armed forces of the Philippines
and, whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection or rebellion or imminent danger thereof, when the public safety requires it, he
may suspend the privileges of the writ of habeas corpus, or place the Philippines or any
part thereof under the martial law...
Under Section 12 of Article IX of the 1973 Constitution, exactly the same powers were conferred on the
Prime Minister.
However, what is now Section 9 of Article VIII under the 1981 amendments transferred all said powers to
the President.
As can be seen, as authorized by the Commander-in-Chief clause of all our Constitutions, there have
been as there still are three other measures that may be resorted to during an emergency, namely:
(1) Call out such armed forces to prevent or suppress lawless violence, invasion,
insurrection or rebellion or imminent danger thereof, when public safety requires it;
(2) Suspend the privilege of the writ of habeas corpus, and
(3) Place the Philippines or any part thereof under martial law.
It appears, therefore, that within the four corners of the Constitution itself, whether that of 1935 or that of
1973, there were four constitutionally designed ways of coping with abnormal situations in the country,
namely: (1) the so-called emergency powers delegated by the assembly to the President; (2) the calling
of the armed forces; (3) the suspension of the privilege of the writ of habeas corpus and (4) the placing of
the country or any part thereof under martial law. Understandably, it is to be supposed that these
measures are to be resorted to one after the other according to the degree of gravity of the situation.
A backward glance at our past experiences since the implantation of American sovereignty in our country
at the turn of the century should remind us that at one time or another all of these four measures have
been resorted to, albeit martial law proclamations in the long past were limited in area and duration
because of the localized nature of the disturbances they were meant to remedy.
Bearing all the foregoing considerations in mind, the question that naturally arises at this juncture is what
need is there for the power contemplated in Amendment No. 6? Why does the country have to have a
one-man legislating authority concurrent with the Batasang Pambansa? Are the above-discussed
safeguards not enough?
At this point, it must be noted that Amendment No. 6 does not refer only to the interim Batasang
Pambansa but also to the regular "National Assembly" (now Batasang Pambansa), a consideration which
lends force to the conclusion that the 1981 amendments could not have been intended nor understood to
do away with it. What, indeed, is the fundamental ration d'tre of Amendment No. 6?
It is to be recalled that the said amendment was formulated in October 1976, more than fully four years
after the whole Philippines was first placed under martial law pursuant to Proclamation 1081 dated
September 21, 1972. True, without loss of time, President Marcos made it clear that there was no military
take-over of the government, and that much less was there being established a revolutionary
government, even as he declared that said martial law was of a double-barrelled typed, unfamiliar to
traditional constitutionalists and political scientists — for two basic and transcendental objectives were
intended by it: (1) the quelling of nationwide subversive activities characteristic not only of a rebellion but
of a state of war fanned by a foreign power of a different Ideology from ours, and not excluding the
stopping effectively of a brewing, if not a strong separatist movement in Mindanao, and (2) the
establishment of a New Society by the institution of disciplinary measures designed to eradicate the
deep-rooted causes of the rebellion and elevate the standards of living education and culture of our
people, and most of an the social amelioration of the poor and underprivileged in the farms and in the
barrios, to the end that hopefully insurgency may not rear its head in this country again.
The immediate reaction of some sectors of the nation was of astonishment and dismay, for even if
everyone knew that the gravity of the disorder, lawlessness, social injustice, youth and student activism
and other disturbing movements had reached a point of peril, they felt that martial law over the whole
country was not yet warranted. Worse, political motivations were ascribed to be behind the proclamation,
what with the then constitutionally unextendible term of President Marcos about to expire, and this
suspicion became more credible when opposition leaders and outspoken anti-administration media
people who did not hesitate to resort even to libel were immediately placed under indefinite detention in
military camps and other unusual restrictions were imposed on travel, communication, freedom of speech
and of the press, etc. In a word, the martial law regime was anathema to no small portion of the populace.
Criticisms or objections thereto were, of course, mostly covert, but there were even instances of open
resistance.
Truth to tell, martial law is generally unwelcome anywhere in the world. And when it is prolonged without
anyone knowing when it would be lifted, the feeling of discontent grows and spreads. Indeed, it is difficult
to describe fully in an opinion like this all that many consider obnoxious in martial law. Suffice it to say that
the New Society that came out of it did have its laudatory features appreciated by large segments of the
people, but with many cases of abuses of the military marring such receptive attitude, the clamor for the
early lifting of martial law became more and more audible.
We can definitely say that no one more than President Marcos was aware of those feelings and
sentiments and, in fact, even of the undercurrents of resistance. And as We visualize the situation he
found himself in, he was faced with no less than a dilemma. He was convinced of the advantages, not
personally to him, but to general welfare of martial law, but at the same time he was also conscious that
martial law, in any form — call it Philippine style, smiling, benign or with any other euphemistic adjective
— was growing to be more and more distasteful. Even the New Society it was supposed to bring about
was slowly losing its splendor. Backsliding was creeping in some ways, discipline was loosening. But over
and above all such adverse developments, the perils to national security and public order still remained, if
in a slightly lesser degree.
It was in the light of the above circumstances and as a means of solving the dilemma aforementioned that
the concept embodied in Amendment No. 6 was born. In brief, the central Idea that emerged was that
martial law may be earlier lifted, but to safeguard our country and people against any abrupt dangerous
situation which would warrant the exercise of some authoritarian powers, the latter must be
constitutionally allowed, thereby to obviate the need to proclaim martial law and its concomitants,
principally the assertion by the military of prerogatives that made them appear superior to the civilian
authorities below the President. In other words, the problem was what may be needed for national
survival or the restoration of normalcy in the face of a crisis or an emergency should be reconciled with
the popular mentality and attitude of the people against martial law.
We have said earlier that the Constitution has four built-in measures to cope with crises and
emergencies. To reiterate, they are: (a) emergency powers expressly delegated by the Batasan; (b) call
of the armed forces, who otherwise are supposed to be in the barracks; (c) suspension of the privilege of
the writ of habeas corpus; and (d) martial law. Of these four, the people dislike martial law most and
would, if possible, do away with it in the Constitution. And the President who first conceived of what is
now Amendment No. 6 knew this. Thus, Our understanding of the development of events and attitudes
that led to the adoption of Amendment No. 6 is that in addition to the four measures authorized in the
body of the charter, this amendment is supposed to be a fifth one purportedly designed to make it
practically unnecessary to proclaim martial law, except in instances of actual surface warfare or rebellious
activities or very sophisticated subversive actions that cannot be adequately met without martial law itself.
Very evidently, the purpose of Amendment No. 6 is that the Philippines be henceforth spared of martial
law unless manifest extreme situations should ever demand it.
To recapitulate, the amendments of October 1976 were deliberately designed against martial law. The
creation thereby of the interim Batasang Pambansa in lieu of the interim National Assembly which never
came into being because of vehement and justified popular repudiation thereof was definitely an
indispensable step towards the lifting of martial law. Everyone can understand that martial law could not
be lifted without a legislative body to make the laws. The legislative authority could not be left in the
hands of the President (Prime Minister). It would have been anachronistic to lift martial law and still leave
the law-making authority with the President (Prime Minister) alone.
Relatedly but more importantly, the vesting of the legislative authority to the interim Batasang Pambansa,
without more or exclusively, would have maintained the safeguards of national security only to the four
traditional constitutional measures repeatedly discussed above, including martial law. The framers of the
amendment realized only too well they had to look for a remedy thereto, the dislike of the people, justified
or not, of martial law. And so, to make the proclamation of martial law remotest, but nevertheless enable
the government to meet emergencies effectively, they conceived the Idea of granting to the President
(Prime Minister) the power endowed to him by Amendment No. 6.
Skeptics and hardcore critics of the administration there must be who would sarcastically allude to
Amendment No. 6 as martial law just the same but only like a dog with merely another collar. A word of
explanation is thus called for of the vital differences between one and the other.
The attitude of those who are opposed to Amendment No. 6 must be due to lack of sufficient
acquaintance with the real essence of the various constitutionally authorized emergency measures
imperatively needed to safeguard the national security and integrity already discussed above. The
delegation of legislative power thru the issuance of rules and regulations to carry out a national policy
declared by the Batasan has its own virtues as a restrained way of conferring law-making authority to the
Executive during an emergency. It is limited, restricted, subject to conditions and temporary. It is
obviously the simplest remedy to cope with an abnormal situation resulting in the least violence to revered
democratic republican processes constitutionally established.
But being purely a political and legislative remedy, it cannot be adequate when lawless violence becomes
generalized and public safety is in jeopardy, hence the need to call out the armed forces. And when such
situation still aggravates to the point of requiring the preventive incarceration or detention of certain
leaders or over active elements, it becomes inevitable to suspend the privilege of the writ of habeas
corpus.
Should matters really go out of hand even after the putting into effect of the measures aforementioned,
under the constitution. without Amendment No. 6, the only recourse would be to proclaim martial law. But
inasmuch as martial law is an extreme measure that carries with it repressive and restrictive elements
unpopular to liberty loving and democratically minded sectors of the country, it is but natural to think of it
only as a very last resort.
Well, it is to avoid the necessity of resorting to the proclamation of martial law that Amendment No. 6 was
conceived. Paraphrasing President Marcos himself, martial law is the law of the gun, that implies coercion
and an active and direct role in the government by the military. Thus, the virtue of Amendment No. 6 is
that such undesirable features of martial law do not have to accompany the exercise of the power thereby
conferred on the Executive. To be sure, the calling out of the armed forces and the suspension of the
privilege of the writ of habeas corpus, which are concomitants of martial law, may be left out or need not
be resorted to when the President acts by virtue of such power. It is, therefore, evident that it is grossly
erroneous to say that Amendment No. 6 is in reality no less than disguised martial law.
Apparently conceding, at least in gratia argumenti, the truth and the logic of all the foregoing discussion
and conclusions, petitioner raises the question of how can Amendment No. 6 fit into the new set up under
the 1981 amendments, which abolished the dual position of President Marcos of President-Prime Minister
mandated by the 1976 Amendment No. 3. According to petitioner, President Marcos is President now (no
longer President-Prime Minister) pursuant to the 1981 amendments and by virtue of his election as such
as proclaimed by the Batasan on June 21, 1981. Not without a bit of sarcasm, petitioner even refers to
the reference to the status of our government after the inauguration of President Marcos as the Fourth
Republic. How then, petitioner asks, can the President of the Fourth Philippine Republic exercise powers
granted to the President-Prime Minister of the provisional government established by the Transitory
Provisions and conferred upon him only by Amendment No. 6 of October 1976?
If We go solely by the rules of literature, a considerable degree of plausibility, as We have intimated

earlier in this opinion, may be conceded to the pose of petitioner. It indeed seems that since the positions
of President and Prime Minister have been separated by the 1981 amendments and the same do not
state to whom the power under Amendment No. 6 would appertain, neither the present President nor the
present Prime Minister can exercise such power. But again, We hold that petitioner is laboring under a
misconception of facts and of the principles of constitutional construction.
Earlier hereinabove, We discoursed on the inevitability of the conclusion that the current Batasan, being
merelyinterim "in lieu of the interim National Assembly" established under Section 1 of the Transitory
Provisions, it is subject to the provisions of Amendment No. 6 which was approved and ratified together
with the creation of the Batasan. We have also made a rather extensive exposition of the whys and
wherefores behind Amendment No. 6. As may be noted, the ultimate thrust of Our discussion is to
establish as a legal proposition that behind and beneath the words of the amendment, the literal
reference to "the President (Prime Minister)" in Amendment No. 6 was the intention to make such
reference descriptive of the person on whom is vested the totality of the executive power under the
system of government established thereby. For as a matter of general principle in constitutional law,
belonging as he does to the political department of the government, it is only with such official that, the
high prerogative of policy determination can be shared. And in this connection, it is very important to note
that the amendment does not speak of the "incumbent President" only, as in the other amendments, like
Nos. 1, 3 and 5, but of the President, meaning to include all future presidents. More, Amendment No. 6
makes mention not only of the interim Batasan but also of the regular one. All these unmistakably imply
that the power conferred upon the President thereby was not for President Marcos alone but for whoever
might be President of the Philippines in the future.
As to the parenthetical mention therein of the Prime Minister, We are of the considered view that it was
necessary to do so because under the governmental system then, which was markedly Prime Ministerial,
the substantive executive powers were vested in the Prime Minister, the President being merely the
symbolical and ceremonial head of state, and the two positions were being held by one and the same
person. In other words, the power was contemplated to be conferred upon whomsoever was vested the
executive power, and that is as it should be, for, to reiterate, from the very nature of the power itself, the
authority to legislate should be allowed, if at all, to be shared only with one in the political department,
directly deriving power from the vote of the people.
Withal, as the Solicitor General aptly posits, it is neither sound nor in consonance with well and long
settled principles of constitutional construction to recognize amendments or repeals of constitutional
provisions by implications, specially in regard to a transcendental matter as that herein under discussion.
Indeed, the fact that Amendment No. 6 was not in any way or sense mentioned in the amendments
submitted to the people for ratification in 1981 and there being nothing in the latter intrinsically
inconsistent with the former, it is safe to conclude that it would be deceiving the people themselves and
depriving them of something they had decided in 1976 to be part of the fundamental law of the land to
now eliminate the power conferred by them upon the Executive of sharing legislative authority with the
Batasan on appropriate occasions of emergency and urgency.
Anent petitioner's claim that the President may not constitutionally grant the amnesty provided for in P.D.
1840, to Our mind, the following well taken brief answer of the Solicitor General, with whom We fully
agree, is more than sufficient to dispose of the same adversely to petitioner's stance:
Petitioner argues that Presidential Decree 1840 is likewise invalid for it did not enjoy the
concurrence of the Batasan. He relies on Article VII, Section 11 of the Constitution which
provides that —
The President may, except in cases of impeachment, grant reprieves,

commutations and pardons, remit fines and forfeitures and with the
concurrence of the Batasang Pambansa, grant amnesty.
Again, we beg to disagree. Article VII, sec. 11, applies only when the President is
exercising his power of executive clemency. In the case at bar, Presidential Decree 1840
was issued pursuant to his power to legislate under Amendment No. 6. It ought to be
indubitable that when the President acts as legislator as in the case at bar, he does not
need the concurrence of the Batasan. Rather, he exercises concurrent authority vested
by the Constitution.
We cannot close this opinion without underscoring the patent tendency and unrelenting effort of the
leadership of the country to make our government and our way of life indigenously Filipino as much as it
is possible to make them so. It has, of course, tried its utmost to see what is good in other lands, but it
has chosen generally to bring out what is best in our own traditions, usages, customs and systems that
have proven efficacious and beneficial during the times of our forebears. The sanggunians and
barangays, which have inherited from the Filipinos of the past and that have been institutionalized in
Constitutional Amendment No. 7 of 1976 have, as everyone can see, proven to be unshakable bedrocks
for the foundation of duly constituted governmental authority with firm nationwide mass base. Our present
government, if in some ways similar to any foreign one, is in truth a product of our own genius in political
science and matters of government. Nowhere else in the world but in the Philippines are martial law
decrees and acts subject to the judicial scrutiny of the Supreme Court. Amendment No. 6 is of the same
strain. It is our native and indigenous way of coping with crucial situations.
We are Filipinos, so much so that the writer of this opinion has purposely avoided reference to, much less
lifted quotations from alien jurisprudence and authorities. If only in this particular case, it is but appropriate
to use language and style of our own.
All the above premises taken into account. Our considered conclusion and judgment is that Amendment
No. 6 of October 1976 of the Constitution of 1973 has not been in anyway altered or modified, much less
repealed by the constitutional amendments of 1981.
WHEREFORE, the petition is dismissed. No costs.
Makasiar, Concepcion, Jr. Guerrero, Plana, Escolin, Vasquez and Relova, JJ., concur.
Melencio-Herrera, J., concur in the result.
Teehankee, I., reserves his vote.
Gutierrez, Jr. J., is on leave.
Separate Opinions
AQUINO, J., concurring:
I concur. Amendment No. 6 qualifies or limits Amendment No. 5, which provides that "the incumbent
President shall continue to exercise legislative powers until martial law shall have been lifted". Hence,
Amendment No. 6 should be read as if it begins with the clause: "However, despite the lifting of martial
law, ..."
I concur in the result. I should state that as Secretary of Justice I participated in the drafting of the 1976
Amendment to the Constitution; that Amendment No. 6 was intended to give to the President (Prime
Minister) the power to issue decrees, etc. subject to the conditions specified therein even after the lifting
of martial law as shown by the fact that it is not only the interim Batasang Pambansa which is mentioned
but also the regular National Assembly; that the words President (Prime Minister) were used in
Amendment No. 6 (and also in Amendment No. 4) simply because at that time both positions were
occupied by the incumbent President; that the fact that at present one person is President and another
person is Prime Minister does not mean the President has lost his power under Amendment No. 6 for that
power was intended to be used by the head of government; and that what has to be borne in mind is that
the structure of the government at Present is essentially that of the presidential type for the President is
both head of state and head of government while the Prime Minister, despite his lofty title, is but an alter
ego of the President.
DE CASTRO, J.: concurring:
The only issue raised by petitioner to which I wish to address myself in this separate opinion, being in full
concurrence with how the other issues are disposed of in the majority opinion, is whether Amendment No.
6 (1976) is still in force after the 1981 Amendments to the 1973 Constitution. Amendment No. 6 reads:
Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the Interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees, orders, or letters of instruction, which
shall form part of the law of the land.
What should be emphatically pointed out is that the effectiveness of this provision is intended to continue
into the future, even beyond the regime of the interim national assembly (Batasan Pambansa), as a wise
and permanent feature of Our constitutional system. This is clear from the reference made therein of
the regular National Assembly, the lifetime of which is without a pre-fixed limit, as is the very existence of
the Republic itself. If for this reason alone, its abrogation or elimination from the Constitution of which the
original intention was to make it a part and parcel, may be effected only by no less than a clear and
express repeal. No such mode of repeal is discoverable from the 1981 amendments of the Constitution.
Petitioner would, however, see a repeal by "omission."
I fail to see such kind of repeal. The power granted by Amendment No. 6 is, by its language, to be
exercised by the "President (Prime Minister)." These words are interpreted by petitioner as meaning that
only when the President is at the same time the Prime Minister, which can only refer to President
Ferdinand E. Marcos, may the power granted by Amendment No. 6 be deemed to remain effective. But
when, as it happened after the 1981 amendments and the last presidential elections, the two offices had
ceased to be combined or unite in the person, of President Marcos, the office of Prime Minister being now
held by another official, Prime Minister Cesar Virata, the power conferred by Amendment No. 6 may no
longer be exercised by any official and therefore the amendment is deemed erased from the Constitution.
This is a most simplistic interpretation that does not do justice to the transcendentally important objectives
of the amendment.
It is here where I would wish to express my view that in using the words "President (Prime Minister)" in
Amendment No. 6, the intent is for the President to exercise the power while he is in possession of the
high executive prerogatives, but when there shall be a regular Prime Minister, it is to the latter that the
power would pertain not to the President anymore, because under the Constitution at the time the 1976
Amendments were adopted it was envisioned that the President would be vested only with essentially
ceremonial powers, the highest executive powers to be then exercised by the Prime Minister. The word
"Prime Minister" immediately following the word "President", but enclosed in parenthesis was therefore,
meant to indicate that when the change will take place whereby the Prime Minister takes over the
executive powers from the President, then it is the former, not the latter, who would exercise the power
defined in Amendment No. 6, to obviate thereby the need of a new amendment. The word "President"
would automatically be replaced by the word "Prime Minister", thus continuing in force the provision of
Amendment No. 6.
To my mind, this is the more reasonable interpretation than to say that the aforementioned words were
merely descriptive of the actual nature of the position held by the "incumbent President" as, indeed only
the incumbent President could possibly combine the two positions in his single personality. If this were
the intention, there would have been no need to enclose the word "Prime Minister" in parenthesis. In
doing so, the intention is made clear that it is the Prime Minister who automatically takes over the
exercise of the power when the President is stripped of real executive power and vested with mainly
ceremonial powers, as obtains in most parliamentary governments.
With the intent as above indicated thus so clearly manifested the 1981 amendment, far from repealing
Amendment No. 6 by omission as petitioner contends, should be construed as having the effect of vesting
the power defined therein in the Chief Executive as now provided in the 1981 amendments. This official is
none other than the President to whom were transferred the powers originally intended to be vested in the
Prime Minister as the chief executive official in a parliamentary system that the 1973 Constitution, at the
beginning, intended to establish for our government. The President would accordingly be the proper
official to exercise the power granted by Amendment No. 6 which, by its intrinsic provision, should be
maintained in effect by all reasonable intendment rather than deemed repealed only by implication which
is never favored.
The view herein expressed would, in my humble opinion, accord more to how the people voted for the
amendments of 1981 who, it may be safe to assert, never had the least intent, to erase Amendment No. 6
from the Constitution which in 1976, they solemnly resolved to permanently enshrine as a new but wise
and transcendentally desirable concept of constitutional power of legislation, dictated by the highest
interest of national welfare and security. Much less had they any awareness that by voting for the
amendments, they would be voting for the elimination of Amendment No. 6 from the Constitution, for such
a result was never given to their conscious understanding. It is fundamental in the interpretation of
statutes and Constitutions that what is controlling is the legislative intent, or the intent of those who enact
the law or the Constitution, who, in the case of the latter, are mainly the people without whose ratification
any amendment proposed by the constituent body would be of no effect. The petitioner himself seems
ready to be counted among those who would not question the wisdom and urgent need of Amendment
No. 6, reason for which the majority opinion may have been needlessly over-burdened with a lengthy
discourse over the reasons behind, and justification for, the adoption of Amendment No. 6 which were
supposed to have been known by all before the people went to the polls to vote for its ratification. This I
say, with apologies to the learned ponente, and hasten to admit that the disquisition is delectably erudite
and scholarly. For the petitioner himself said: "Whether the matter or that there was an emergency which
required immediate action, let it be conceded that in the judgment of the President such facts do exists." If
he now questions the constitutionality of Amendment No. 6, it is more on ground of form rather than of
substance, based merely on his feeling of skepticism that it no longer fits into the pattern or format of the
1973 Constitution as amended on April 7, 1981.
Fernando, C.J., concurs and reserves the right to file a brief statement of his views.
Separate Opinions
AQUINO, J., concurring:
Amendment No. 6 qualifies or limits Amendment No. 5, which provides that "the incumbent President
shall continue to exercise legislative powers until martial law shall have been lifted". Hence, Amendment
No. 6 should be read as if it begins with the clause: "However, despite the lifting of martial law, ..."
I concur in the result. I should state that as Secretary of Justice I participated in the drafting of the 1976
Amendment to the Constitution; that Amendment No. 6 was intended to give to the President (Prime
Minister) the power to issue decrees, etc. subject to the conditions specified therein even after the lifting
of martial law as shown by the fact that it is not only the interim Batasang Pambansa which is mentioned
but also the regular National Assembly; that the words President (Prime Minister) were used in
Amendment No. 6 (and also in Amendment No. 4) simply because at that time both positions were
occupied by the incumbent President; that the fact that at present one person is President and another
person is Prime Minister does not mean the President has lost his power under Amendment No. 6 for that
power was intended to be used by the head of government; and that what has to be borne in mind is that
the structure of the government at Present is essentially that of the presidential type for the President is
both head of state and head of government while the Prime Minister, despite his lofty title, is but an alter
ego of the President.
DE CASTRO, J.: concurring:
The only issue raised by petitioner to which I wish to address myself in this separate opinion, being in full
concurrence with how the other issues are disposed of in the majority opinion, is whether Amendment No.
6 (1976) is still in force after the 1981 Amendments to the 1973 Constitution. Amendment No. 6 reads:
Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the Interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees, orders, or letters of instruction, which
shall form part of the law of the land.
What should be emphatically pointed out is that the effectiveness of this provision is intended to continue
into the future, even beyond the regime of the interim national assembly (Batasan Pambansa), as a wise
and permanent feature of Our constitutional system. This is clear from the reference made therein of
the regular National Assembly, the lifetime of which is without a pre-fixed limit, as is the very existence of
the Republic itself. If for this reason alone, its abrogation or elimination from the Constitution of which the
original intention was to make it a part and parcel, may be effected only by no less than a clear and
express repeal. No such mode of repeal is discoverable from the 1981 amendments of the Constitution.
Petitioner would, however, see a repeal by "omission."
I fail to see such kind of repeal. The power granted by Amendment No. 6 is, by its language, to be
exercised by the "President (Prime Minister)." These words are interpreted by petitioner as meaning that
only when the President is at the same time the Prime Minister, which can only refer to President
Ferdinand E. Marcos, may the power granted by Amendment No. 6 be deemed to remain effective. But
when, as it happened after the 1981 amendments and the last presidential elections, the two offices had
ceased to be combined or unite in the person, of President Marcos, the office of Prime Minister being now
held by another official, Prime Minister Cesar Virata, the power conferred by Amendment No. 6 may no
longer be exercised by any official and therefore the amendment is deemed erased from the Constitution.
This is a most simplistic interpretation that does not do justice to the transcendentally important objectives
of the amendment.
It is here where I would wish to express my view that in using the words "President (Prime Minister)" in
Amendment No. 6, the intent is for the President to exercise the power while he is in possession of the
high executive prerogatives, but when there shall be a regular Prime Minister, it is to the latter that the
power would pertain not to the President anymore, because under the Constitution at the time the 1976
Amendments were adopted it was envisioned that the President would be vested only with essentially
ceremonial powers, the highest executive powers to be then exercised by the Prime Minister. The word
"Prime Minister" immediately following the word "President", but enclosed in parenthesis was therefore,
meant to indicate that when the change will take place whereby the Prime Minister takes over the
executive powers from the President, then it is the former, not the latter, who would exercise the power
defined in Amendment No. 6, to obviate thereby the need of a new amendment. The word "President"
would automatically be replaced by the word "Prime Minister", thus continuing in force the provision of
Amendment No. 6.
To my mind, this is the more reasonable interpretation than to say that the aforementioned words were
merely descriptive of the actual nature of the position held by the "incumbent President" as, indeed only
the incumbent President could possibly combine the two positions in his single personality. If this were
the intention, there would have been no need to enclose the word "Prime Minister" in parenthesis. In
doing so, the intention is made clear that it is the Prime Minister who automatically takes over the
exercise of the power when the President is stripped of real executive power and vested with mainly
ceremonial powers, as obtains in most parliamentary governments.
With the intent as above indicated thus so clearly manifested the 1981 amendment, far from repealing
Amendment No. 6 by omission as petitioner contends, should be construed as having the effect of vesting
the power defined therein in the Chief Executive as now provided in the 1981 amendments. This official is
none other than the President to whom were transferred the powers originally intended to be vested in the
Prime Minister as the chief executive official in a parliamentary system that the 1973 Constitution, at the
beginning, intended to establish for our government. The President would accordingly be the proper
official to exercise the power granted by Amendment No. 6 which, by its intrinsic provision, should be
maintained in effect by all reasonable intendment rather than deemed repealed only by implication which
is never favored.
The view herein expressed would, in my humble opinion, accord more to how the people voted for the
amendments of 1981 who, it may be safe to assert, never had the least intent, to erase Amendment No. 6
from the Constitution which in 1976, they solemnly resolved to permanently enshrine as a new but wise
and transcendentally desirable concept of constitutional power of legislation, dictated by the highest
interest of national welfare and security. Much less had they any awareness that by voting for the
amendments, they would be voting for the elimination of Amendment No. 6 from the Constitution, for such
a result was never given to their conscious understanding. It is fundamental in the interpretation of
statutes and Constitutions that what is controlling is the legislative intent, or the intent of those who enact
the law or the Constitution, who, in the case of the latter, are mainly the people without whose ratification
any amendment proposed by the constituent body would be of no effect. The petitioner himself seems
ready to be counted among those who would not question the wisdom and urgent need of Amendment
No. 6, reason for which the majority opinion may have been needlessly over-burdened with a lengthy
discourse over the reasons behind, and justification for, the adoption of Amendment No. 6 which were
supposed to have been known by all before the people went to the polls to vote for its ratification. This I
say, with apologies to the learned ponente, and hasten to admit that the disquisition is delectably erudite
and scholarly. For the petitioner himself said: "Whether the matter or that there was an emergency which
required immediate action, let it be conceded that in the judgment of the President such facts do exists." If
he now questions the constitutionality of Amendment No. 6, it is more on ground of form rather than of
substance, based merely on his feeling of skepticism that it no longer fits into the pattern or format of the
1973 Constitution as amended on April 7, 1981.
Fernando, C.J., concurs and reserves the right to file a brief statement of his views.

SUPREME COURT
Manila
EN BANC
G.R. No. 118702 March 16, 1995

CIRILO ROY G. MONTEJO, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
SERGIO A.F. APOSTOL, intervenor.
PUNO, J.:
More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. Montejo,
representing the First District of Leyte, pleads for the annulment of section 1 of Resolution No. 2736 of
the COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the principle of
equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality
of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F. Apostol,
representing the Second District, vigorously opposed the inclusion of Tolosa in his district. We gave due
course to the petition considering that, at bottom, it involves the validity of the unprecedented exercise by
the COMELEC of the legislative power of redistricting and reapportionment.
The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative districts. 1
The first district2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo, San
Miguel, Sta. Fe, Tanauan and Tolosa.
The second district3 is composed of the municipalities of Barugo, Barauen, Capoocan, Carigara, Dagami,
Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon, and Tunga.
The third district4 is composed of the municipalities of Almeria, Biliran, Cabucgayan, Caibiran, Calubian,
Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba.
The fourth district5 is composed of Ormoc City and the municipalities of Albuera, Isabel, Kananga,
Matagob, Merida, and Palompon.
The fifth district6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos, Hindang,
Inopacan, Javier, Mahaplag, and Matalom.
Biliran, located in the third district of Leyte , was made its sub-province by virtue of Republic Act No. 2141
Section 1 of the law spelled out enacted on April 8, 1959.7
Section 1 of the law spelled out the municipalities comprising the sub-province, viz.: "Almeria, Biliran,
Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories comprised therein."
On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-
province of Biliran became a regular province. It provides:
Existing sub-provinces are hereby converted into regular provinces upon approval by a majority of
the votes cast in a plebiscite to be held in the sub-provinces and the original provinces directly
affected. The plebiscite shall be conducted by the COMELEC simultaneously with the national
elections following the effectivity of this code. The new legislative districts created as a result of such
conversion shall continue to be represented in Congress by the duly-elected representatives of the
original districts out of which said new provinces or districts were created until their own
representatives shall have been elected in the next regular congressional elections and qualified.
The conversion of Biliran into a regular province was approved by a majority of the votes cast in a
plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the Third
District composed the new province of Biliran, i.e., Almeria, Biliran, Cabucgayan, Caibiran, Culaba,
Kawayan, Maripipi, and Naval. A further consequence was to reduce the Third District to five (5)
municipalities with a total population of 145,067 as per the 1990 census.
To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the
province of Leyte, respondent COMELEC held consultation meetings with the incumbent representatives
of the province and other interested parties. On December 29, 1994, it promulgated Resolution No. 2736
where, among others, it transferred the municipality of Capoocan of the Second District and the
municipality of Palompon of the Fourth District to the Third District of Leyte. The composition of the First
District which includes the municipality of Tolosa and the composition of the Fifth District were not
disturbed. After the movement of municipalities, the composition of the five (5) legislative districts
appeared as follows:
First District: Population Registered

Voters
(1990) (1994)
1. Tacloban City, 137,190 81,679

2. Alangalang, 33,375 20,543
3. Babatngon, 17,795 9,929
4. Palo, 38,100 20,816
5. San Miguel, 13,438 8,167
6. Sta. Fe, 12,119 7,497
7. Tanauan and, 38,033 22,357
8. Tolosa; 13,299 7,700
———— ————
TOTAL 303,349 178,688
Second District: Population Registered

Voters
(1990) (1994)
1. Barugo, 23,817 13,237

2. Barauen, 46,029 23,307
3. Carigara 38,863 22,036
4. Dagami, 25,606 16,519
5. Dulag, 33,020 19,375
6. Jaro, 31,727 17,139
7. Julita, 9,944 6,196
8. La Paz, 14,311 9,003
9. Mayorga, 10,530 5,868
10. Mac Arthur, 13,159 8,628
11. Pastrana, 12,565 7,348
12. Tabontabon, and 7,183 4,419
13. Tunga; 5,413 3,387
———— ————
TOTAL 272,167 156,462
Third District: Population Registered

Voters
(1990) (1994)
1. Calubian, 25,968 16,649
2. Leyte, 32,575 16,415
3. San Isidro, 24,442 14,916
4. Tabango, 29,743 15,48
5. Villaba, 32,339 21,227
6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474
———— ————
TOTAL 214,499 125,763
Fourth District: Population Registered

Voters
(1990) (1994)
1. Ormoc City, 129,456 75,140

2. Albuera, 32,395 17,493
3. Isabel, 33,389 21,889
4. Kananga, 36,288 19,873
5. Matagob, 15,474 9,407
6. Merida, and 22,345 12,474
———— ————
TOTAL 269,347 155,995
Fifth District: Population Registered

Voters
(1990) (1994)
1. Abuyog, 47,265 28,682

2. Bato, 28,197 116,13
3. Baybay, 82,281 47,923
4. Hilongos, 48,617 26,871
5. Hindang, 16,272 9,659
6. Inopacan, 16,894 10,401
7. Javier, 18,658 11,713
8. Mahaplag, and 22,673 13,616
9. Matalom 28,291 16,247
———— ————
TOTAL 309,148 181,242
Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC,
among others, to the inequitable distribution of inhabitants and voters between the First and Second
Districts. He alleged that the First District has 178,688 registered voters while the Second District has
156,462 registered voters or a difference of 22,226 registered voters. To diminish the difference, he
proposed that the municipality of Tolosa with 7,7000 registered voters be transferred from the First to the
Second District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent Commission
denied the motion ruling that: (1) its adjustment of municipalities involved the least disruption of the
territorial composition of each district; and (2) said adjustment complied with the constitutional
requirement that each legislative district shall comprise, as far as practicable, contiguous, compact and
adjacent territory.
In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of equality of
representation ordained in the Constitution. Citing Wesberry v. Sanders,8 he argues that respondent
COMELEC violated "the constitutional precept that as much as practicable one man's vote in a
congressional election is to be worth as much as another's." The Solicitor General, in his Comment,
concurred with the views of the petitioner. The intervenor, however, opposed the petition on two (2)
grounds: (1) COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has
jurisdiction, said Resolution is in accord with the Constitution. Respondent COMELEC filed its own
Comment alleging that it acted within the parameters of the Constitution.
We find section 1 of Resolution No. 2736 void.
While the petition at bench presents a significant issue, our first inquiry will relate to the constitutional
power of the respondent COMELEC9 to transfer municipalities from one legislative district to another
legislative district in the province of Leyte. The basic powers of respondent COMELEC, as enforcer and
administrator of our election laws, are spelled out in black and white in section 2(c), Article IX of the
Constitution. Rightly, respondent COMELEC does not invoke this provision but relies on the Ordinance
appended to the 1987 Constitution as the source of its power of redistricting which is traditionally
regarded as part of the power to make laws. The Ordinance is entitled "Apportioning the Seats of the
House of Representatives of the Congress of the Philippines to the Different Legislative Districts in
Provinces and Cities and the Metropolitan Manila Area." Its substantive sections state:
Sec. 1. For purposes of the election of Members of the House of Representatives of the First
Congress of the Philippines under the Constitution proposed by the 1986 Constitutional
Commission and subsequent elections, and until otherwise provided by law, the Members thereof
shall be elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila Area as follows:
xxx xxx xxx
Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the
reapportionment herein made.
Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter
increase to more than two hundred fifty thousand shall be entitled in the immediately following
election to at least one Member or such number of Members as it may be entitled to on the basis
of the number of its inhabitants and according to the standards set forth in paragraph (3), Section
5 of Article VI of the Constitution. The number of Members apportioned to the province out of
which such new province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on Elections but
such adjustment shall not be made within one hundred and twenty days before the election.
(Emphasis supplied)
The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C. Aquino,
ordaining the Provisional Constitution of the Republic of the Philippines, abolished the Batasang
Pambansa. 11 She then exercised legislative powers under the Provisional Constitution. 12
The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, Jr., 13 now a
distinguished member of this Court. The records reveal that the Constitutional Commission had to resolve
several prejudicial issues before authorizing the first congressional elections under the 1987 Constitution.
Among the vital issues were: whether the members of the House of Representatives would be elected by
district or by province; who shall undertake the apportionment of the legislative districts; and, how the
apportionment should be made.14Commissioner Davide, Jr. offered three (3) options for the Commission
to consider: (1) allow President Aquino to do the apportionment by law; (2) empower the COMELEC to
make the apportionment; or (3) let the Commission exercise the power by way of an Ordinance appended
to the Constitution. 15 The different dimensions of the options were discussed by Commissioners Davide,
Felicitas S. Aquino and Blas F. Ople. We quote the debates in extenso, viz.:16
xxx xxx xxx

MR. PADILLA. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is recognized.
MR. PADILLA. I think I have filed a very simple motion by way of amendment by substitution and
this was, I believe, a prior or a proposed amendment. Also, the chairman of the Committee on the
Legislative said that he was proposing a vote first by the Chamber on the concept of whether the
election is by province and cities on the one hand, or by legislative districts on the other. So I
propose this simple formulation which reads: "FOR THE FIRST ELECTION UNDER THIS
CONSTITUTION THE LEGISLATIVE DISTRICTS SHALL BE APPORTIONED BY THE
COMMISSION ON ELECTIONS." I hope the chairman will accept the proposed amendment.
SUSPENSION OF SESSION
MR. DAVIDE. The effect is, more or less, the same insofar as the apportionment is concerned, but
the Bernas-Sarmiento et al. proposal would also provide for a mandate for the apportionment later,
meaning after the first election, which will in effect embody what the Commission had approved,
reading as follows: "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."
So, Mr. Presiding Officer, may I request for a suspension of the session, so that all the proponents
can work together.
THE PRESIDING OFFICER (Mr. Jamir). The session is suspended.
It was 3:33 p.m.
RESUMPTION OF SESSION
At 3:40 p.m., the session was resumed.
THE PRESIDING OFFICER (Mr. Jamir). The session is resumed.
Commissioner Davide is recognized.
MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the Commission will allow this.
We will just delete the proposed subparagraph (4) and all the capitalized words in paragraph (5). So
that in paragraph (5), what would be left would only be the following: "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."
But we shall have an ordinance appended to the new Constitution indicating specifically the
following: "FOR PURPOSES OF THE ELECTION OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES IN THE FIRST CONGRESSIONAL ELECTION IMMEDIATELY FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION PROPOSED BY THE 1986 CONSTITUTIONAL
COMMISSION AND SUBSEQUENT ELECTIONS AND UNTIL OTHERWISE PROVIDED BY LAW,
THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE ELECTED FROM
LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES AND THE
METROPOLITAN MANILA AREA AS FOLLOWS."
And what will follow will be the allocation of seats to Metropolitan Manila Area, to the provinces and
to the cities, without indicating the municipalities comprising each of the districts. Then, under
Section 2, we will mandate the COMELEC to make the actual apportionment on the basis of the
number of seats provided for and allocated to each province by us.
MS. AQUINO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.
MS. AQUINO. I have to object to the provision which will give mandate to COMELEC to do the
redistricting. Redistricting is vitally linked to the baneful practices of cutting up areas or spheres of
influence; in other words, gerrymandering. This Commission, being a nonpartisan, a nonpolitical
deliberative body, is in the best possible situation under the circumstances to undertake that
responsibility. We are not wanting in expertise and in time because in the first place, the Committee
on the Legislative has prepared the report on the basis of the recommendation of the COMELEC.
MR. OPLE. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized.
MR. OPLE. I would like to support the position taken by Commissioner Aquino in this respect. We
know that the reapportionment of provinces and cities for the purpose of redistricting is generally
inherent in the constituent power or in the legislative power. And I would feel very uncertain about
delegating this to a quasi-judicial body even if it is one of the constitutional offices created under
this Constitution. We have the assurance of Commissioner Davide, as chairman of the Committee
on the Legislative, that even given the very short time remaining in the life of this Commission,
there is no reason why we cannot complete the work of reapportionment on the basis of the
COMELEC plan which the committee has already thoroughly studied and which remains available
to the Constitutional Commission.
So, I support the position taken by Commissioner Aquino, Mr. Presiding Officer. I think, it is the
safest, the most reasonable, and the most workable approach that is available to this Commission.
THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide say:
MR. DAVIDE. The issue now is whether this body will make the apportionment itself or whether we
will leave it to the COMELEC. So, there arises, therefore, a prejudicial question for the body to
decide. I would propose that the Commission should now decide what body should make the
apportionment. Should it be the Commission or should it be the COMELEC? And the Committee on
the Legislative will act accordingly on the basis of the decision.
MR. BENGZON. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is recognized.
MR. BENGZON. Apropos of that, I would like to inform the body that I believe the Committee on the
Legislative has precisely worked on this matter and they are ready with a list of apportionment.
They have, in fact, apportioned the whole country into various districts based on the
recommendation of the COMELEC. So they are ready with the list and if this body would wish to
apportion the whole country by district itself, then I believe we have the time to do it because the
Committee on the Legislative is ready with that particular report which need only to be appended to
the Constitution. So if this body is ready to accept the work of the Committee on the Legislative we
would have no problem. I just would like to give that information so that the people here would be
guided accordingly when they vote.
MR. RODRIGO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is recognized.
MR. RODRIGO. I just would like to ask Commissioner Davide some questions.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if he so desires.
MR. DAVIDE. Gladly.
MR. RODRIGO. Will this apportionment which we are considering apply only to the first election
after the enactment of the Constitution?
MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first election; on the basis of the
Sarmiento proposal, it will only apply to the first election.
MR. RODRIGO. And after that, Congress will have the power to reapportion.
MR. DAVIDE. Yes.
MR. RODRIGO. So, if we attach this to the Constitution — the reapportionment based on the
COMELEC study and between the approval of the Constitution and the first election — the
COMELEC no longer has the power to change that even a bit.
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is recognized.
MR. REGALADO. May I address a clarificatory question to Commissioner Davide?
THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed.
MR. REGALADO. On the basis of the Commissioner's proposed apportionment and considering
the fact that there will be a corresponding reduction to 183 seats, would there be instances
representation of under non-representation?
MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission that there will be no
case of inequitable distribution. It will come out to be one for every 350 to 400,000 inhabitants.
MR. REGALADO. And that would be within the standard that we refer.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MR. REGALADO. Thank you.
MR. RAMA. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized.
MR. RAMA. The parliamentary situation is that there was a motion by Commissioner Sarmiento to
mandate COMELEC to do the redistricting. This was also almost the same motion by
Commissioner Padilla and I think we have had some kind of meeting of minds. On the other hand,
there seems to be a prejudicial question, an amendment to the amendment as suggested by
Commissioner Aquino, that instead of the COMELEC, it should be this Commission that shall make
the redistricting. So may I ask Commissioner Aquino, if she insists on that idea, to please formulate
it into a motion so we can vote on that first as an amendment to the amendment.
THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.
MS . AQUINO. The motion is for this Commission to undertake the apportionment of the legislative
districts instead of the proposal that COMELEC be given the mandate to undertake the
responsibility.
xxx xxx xxx
MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or the proposed
amendment?
THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment.
MR. SARMIENTO. May we move for the approval of this proposed amendment which we substitute
for paragraphs 4 and 5.
MR. DAVIDE. May I request that it should be treated merely as a motion to be followed by a
deletion of paragraph 4 because that should not really appear as a paragraph in Section 5;
otherwise, it will appear very ugly in the Constitution where we mandate a Commission that will
become functus officio to have the authority. As a matter of fact, we cannot exercise that authority
until after the ratification of the new Constitution.
THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Sarmiento say?
MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the approval of this
proposed amendment.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.
MS. AQUINO. Would that require a two-thirds vote or a simple plurality to adopt that motion?
THE PRESIDING OFFICER (Mr. Jamir). That will require a two-thirds vote.
MS. AQUINO. Thank you. Mr. Presiding Officer.
MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed.
MR. SARMIENTO. May I move that this Commission do the reapportionment legislative districts.
THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of Commissioner Aquino?
MS. AQUINO. May I be clarified again on the motion. Is Commissioner Sarmiento, therefore,
adopting my motion? Would it not be right for him to move that the COMELEC be mandated?
MR. SARMIENTO. No, we accepted the amendment. It is already the Commission that will be
mandated.
MS. AQUINO. So, the Gentlemen has accepted the amendment the amendment.
Thank you.
MR. SARMIENTO. I am voting that this Commission do the reapportionment.
VOTING
THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote.
As many as are in favor, please raise their hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 30 votes in favor and none against; the motion is approved.
Clearly then, the Constitutional Commission denied to the COMELEC the major power of legislative
apportionment as it itself exercised the power. Section 2 of the Ordinance only empowered the
COMELEC "to make minoradjustments of the reapportionment herein made." The meaning of the phrase
"minor adjustments was again clarified in the debates 17 of the Commission, viz.:
xxx xxx xxx
MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2, the Commission on
Elections is empowered to make minor adjustments on the apportionment made here.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MR. GUINGONA. We have not set any time limit for this.
MR. DAVIDE. We should not set a time limit unless during the period of amendments a proposal is
made. The authority conferred would be on minor corrections or amendments, meaning to say, for
instance, that we may have forgotten an intervening municipality in the enumeration, which ought to
be included in one district. That we shall consider a minor amendment.
MR. GUINGONA. Thank you.
THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is recognized.
MR. DE CASTRO. Thank you.
I was about to ask the committee the meaning of minor adjustment. Can it be possible that one
municipality in a district be transferred to another district and call it a minor adjustment?
MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, meaning, that there should be no
change in the allocations per district. However, it may happen that we have forgotten a
municipality in between which is still in the territory of one assigned district, or there may be an
error in the correct name of a particular municipality because of changes made by the interim
Batasang Pambansa and the Regular Batasang Pambansa. There were many batas pambansa
enacted by both the interim and the Regular Batasang Pambansa changing the names of
municipalities.
MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipalities is not
mentioned in the ordinance appended to, and it will be up for the COMELEC now to adjust or to put
such municipality to a certain district.
MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the data regarding a
division of a municipality by the interim Batasang Pambansa or the Regular Batasang Pambansa
into two municipalities, meaning, a mother municipality and the new municipality, but still actually
these are within the geographical district area.
MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do is that, if, for example,
my municipality is in the First District of Laguna, they cannot put that in any other district.
MR. DAVIDE. That is not even a minor correction. It is a substantive one.
MR. DE CASTRO. Thank you.
Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did not also
give the respondent COMELEC any authority to transfer municipalities from one legislative district to
another district. The power granted by Section 3 to the respondent COMELEC is to adjust the number
of members (not municipalities) "apportioned to the province out of which such new province was created.
. . ."
Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of
discretion amounting to lack of jurisdiction when it promulgated section 1 of its Resolution No. 2736
transferring the municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of Leyte.
It may well be that the conversion of Biliran from a sub-province to a regular province brought about an
imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of
Leyte. This imbalance, depending on its degree, could devalue a citizen's vote in violation of the equal
protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise
this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment
of legislative districts and petitioner's remedy lies with Congress. Section 5(4), Article VI of the
Constitution categorically gives Congress the power to reapportion, thus: "Within three (3) years following
the return of every census, the Congress shall make a reapportionment of legislative districts based on
the standards provided in this section." In Macias v. COMELEC, 18 we ruled that the validity of a
legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional
reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing
respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District
of the province of Leyte.
IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the municipality of
Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third
District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the
transfer of the municipality of Tolosa from the First District to the Second District of the province of Leyte.
No costs.
SO ORDERED
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE
JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF
PEOPLE’S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter
in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY
GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT
OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS
(LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES
(CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES
(SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA ANN P.
ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA
QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE
LEON; AQUILINO Q. PIMENTEL, JR.;Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING
(IBPGovernor-Eastern Visayas), Petitioners,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and
the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit;
and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by
the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of Chief
Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the
Judiciary and submit to the President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No.
191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the
Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera;
Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello
and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a
motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was
allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to
designate the Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment
and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief
Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest for
him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial
appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has created
exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an
executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary
the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court
has raised the Constitution to the level of a venerated text whose intent can only be divined by its
framers as to be outside the realm of understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal
composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution violates the basic principle that the Court
should not formulate a rule of constitutional law broader than what is required by the precise facts of
the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to
apply it. The provision expressly and clearly provides a general limitation on the appointing power of
the President in prohibiting the appointment of any person to any position in the Government without
any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight
appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight
appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one over
the other, for the Court’s duty is to apply the safeguards as they are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting
the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents
on statutory construction holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments, and the only exception is
that on temporary appointments to executive positions.
8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the
candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with a
view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17, 2010.
The Constitution grants the Court only the power of supervision over the JBC; hence, the Court cannot
tell the JBC what to do, how to do it, or when to do it, especially in the absence of a real and justiciable
case assailing any specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.
10. The constitutional ban on appointments being already in effect, the Court’s directing the JBC to
comply with the decision constitutes a culpable violation of the Constitution and the commission of an
election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated
by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent
is indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong the
outgoing President’s powers by means of proxies. The attempt of the incumbent President to appoint
the next Chief Justice is undeniably intended to perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments
to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the Valenzuela
pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential appointments to the Constitutional
Commissions and the JBC with the consent of the Commission on Appointments. Its phrase "other
officers whose appointments are vested in him in this Constitution" is enough proof that the limitation
on the appointing power of the President extends to appointments to the Judiciary. Thus, Section 14,
Section 15, and Section 16 of Article VII apply to all presidential appointments in the Executive and
Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief
Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Court’s exercise of judicial review.
2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court
and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII
against midnight appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on midnight
appointments is based on an interpretation beyond the plain and unequivocal language of the
Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and
Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have
obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there is
any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent political
partisanship in all branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation based on compartmentalization

and physical arrangement, especially considering that the Constitution must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution should
yield to the plain and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with
the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a
justiciable controversy. The issues it raised were not yet ripe for adjudication, considering that the office
of the Chief Justice was not yet vacant and that the JBC itself has yet to decide whether or not to submit
a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of
Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has violated
the principle of ut magis valeat quam pereat (which mandates that the Constitution should be interpreted
as a whole, such that any conflicting provisions are to be harmonized as to fully give effect to all). There
is no conflict between the provisions; they complement each other.
4. The form and structure of the Constitution’s titles, chapters, sections, and draftsmanship carry little
weight in statutory construction. The clear and plain language of Section 15, Article VII precludes
interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and
interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual
vacancy in the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs
in conflict with long standing principles and doctrines of statutory construction. The provision admits
only one exception, temporary appointments in the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on
midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the opinion
of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill
any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next
President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within which
to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than enough
opportunity to examine the nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is
suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The
directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election
offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en
banc, even when it acts as the sole judge of all contests relative to the election, returns and
qualifications of the President and Vice-President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief
Justice to the President on or before May 17, 2010, and to continue its proceedings for the nomination
of the candidates, because it granted a relief not prayed for; imposed on the JBC a deadline not
provided by law or the Constitution; exercised control instead of mere supervision over the JBC; and
lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory
construction to the effect that the literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948
already provides that the power and duties of the office devolve on the most senior Associate Justice in
case of a vacancy in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization and arrangement
of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent
records of the Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17,
2010 at the latest, because no specific law requires the JBC to submit the list of nominees even before
the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the
temporary appointment to an executive position. The limitation is in keeping with the clear intent of the
framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to make
appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments makes
the appointee beholden to the outgoing Chief Executive, and compromises the independence of the
Chief Justice by having the outgoing President be continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the principle of stare
decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is
prohibited from making within the prescribed period. Plain textual reading and the records of the
Constitutional Commission support the view that the ban on midnight appointments extends to judicial
appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must
first act not in accord with prescribed rules before the act can be redone to conform to the prescribed
rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a
justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the
general intent of the Constitution as a limitation to the powers of Government and as a bastion for the
protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that protects the citizenry from an ever expanding
grant of authority to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally repugnant to
republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution
without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments,
thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for the position of
Chief Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on
midnight appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as well as other
related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet
decided at the time the petitions were filed whether the incumbent President has the power to appoint
the new Chief Justice, and because the JBC, having yet to interview the candidates, has not submitted
a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the
President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis.
The statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate and
its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG
and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved. His
comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and the
separate opinion.
2. The administrative matter he brought invoked the Court’s power of supervision over the JBC as
provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Court’s adjudicatory
power under Section 1, Article VIII. In the former, the requisites for judicial review are not required,
which was why Valenzuela was docketed as an administrative matter. Considering that the JBC itself
has yet to take a position on when to submit the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the
Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice
Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section 15,
Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and
argued, not being new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist
that the Court has erred in disobeying or abandoning Valenzuela. 1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to
precedent and not to unsettle things that are settled. It simply means that a principle underlying the
decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same
court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed
or overruled by a court of competent authority. The decisions relied upon as precedents are commonly
those of appellate courts, because the decisions of the trial courts may be appealed to higher courts and
for that reason are probably not the best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.3 In a hierarchical judicial system like ours, the decisions of the higher courts bind the lower courts,
but the courts of co-ordinate authority do not bind each other. The one highest court does not bind itself,
being invested with the innate authority to rule according to its best lights. 4
The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the
Court, especially with a new membership, is not obliged to follow blindly a particular decision that it
determines, after re-examination, to call for a rectification.5 The adherence to precedents is strict and rigid
in a common-law setting like the United Kingdom, where judges make law as binding as an Act of
Parliament.6 But ours is not a common-law system; hence, judicial precedents are not always strictly and
rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in a
subsequent case only when its reasoning and justification are relevant, and the court in the latter case
accepts such reasoning and justification to be applicable to the case. The application of the precedent is
for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and
that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of rationality and
foundation. They seem to conveniently forget that the Constitution itself recognizes the innate authority of
the Court en banc to modify or reverse a doctrine or principle of law laid down in any decision rendered
en banc or in division.7
Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional
Commission extended to the Judiciary the ban on presidential appointments during the period stated in
Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional
Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII, but only Section 13,
Article VII, a provision on nepotism. The records of the Constitutional Commission show that
Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices related to the President
within the fourth civil degree of consanguinity or affinity among the persons whom the President might not
appoint during his or her tenure. In the end, however, Commissioner Davide, Jr. withdrew the proposal to
include the Judiciary in Section 13, Article VII "(t)o avoid any further complication," 8 such that the final
version of the second paragraph of Section 13, Article VII even completely omits any reference to the
Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall
not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many principles
of statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed
reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of
the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of
verba legis. That is self-contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section 9, both of
Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided
therein, despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for
doing so would generally constitute an encroachment upon the field of the Constitutional Commission.
Rather, Section 4(1) and Section 9 should be left as they are, given that their meaning is clear and
explicit, and no words can be interpolated in them.9Interpolation of words is unnecessary, because the
law is more than likely to fail to express the legislative intent with the interpolation. In other words, the
addition of new words may alter the thought intended to be conveyed. And, even where the meaning of
the law is clear and sensible, either with or without the omitted word or words, interpolation is improper,
because the primary source of the legislative intent is in the language of the law itself. 10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment
of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not
done only reveals that the prohibition against the President or Acting President making appointments
within two months before the next presidential elections and up to the end of the President’s or Acting
President’s term does not refer to the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit
the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that because
all the Members of the present Court were appointed by the incumbent President, a majority of them are
now granting to her the authority to appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any
claim to the contrary proceeds from malice and condescension. Neither the outgoing President nor the
present Members of the Court had arranged the current situation to happen and to evolve as it has. None
of the Members of the Court could have prevented the Members composing the Court when she
assumed the Presidency about a decade ago from retiring during her prolonged term and tenure, for their
retirements were mandatory. Yet, she is now left with an imperative duty under the Constitution to fill up
the vacancies created by such inexorable retirements within 90 days from their occurrence. Her official
duty she must comply with. So must we ours who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the assailed Decision. The various
motions for reconsideration raise hollering substantial arguments and legitimately nagging questions
which the Court must meet head on.
If this Court is to deserve or preserve its revered place not just in the hierarchy but also in history, passion
for reason demands the issuance of an extended and extensive resolution that confronts the ramifications
and repercussions of its assailed Decision. Only then can it offer an illumination that any self-respecting
student of the law clamors and any adherent of the law deserves. Otherwise, it takes the risk of reeking of
an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally proscribed from appointing the successor of
Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00
noon of June 30, 2010
1. In interpreting the subject constitutional provisions, the Decision disregarded established

canons of statutory construction. Without explaining the inapplicability of each of the relevant
rules, the Decision immediately placed premium on the arrangement and ordering of provisions,
one of the weakest tools of construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly rest on
ConCom deliberations, yet it did not offer to cite a material ConCom deliberation. It instead opted
to rely on the memory of Justice Florenz Regalado which incidentally mentioned only the "Court
of Appeals." The Decision’s conclusion must rest on the strength of its own favorable Concom
deliberation, none of which to date has been cited.
3. Instead of choosing which constitutional provision carves out an exception from the other
provision, the most legally feasible interpretation (in the limited cases of temporary physical or
legal impossibility of compliance, as expounded in my Dissenting Opinion) is to consider the
appointments ban or other substantial obstacle as a temporary impossibility which excuses or
releases the constitutional obligation of the Office of the President for the duration of the ban or
obstacle.
In view of the temporary nature of the circumstance causing the impossibility of performance, the
outgoing President is released from non-fulfillment of the obligation to appoint, and the duty devolves
upon the new President. The delay in the fulfillment of the obligation becomes excusable, since the law
cannot exact compliance with what is impossible. The 90-day period within which to appoint a member of
the Court is thus suspended and the period could only start or resume to run when the temporary
obstacle disappears (i.e., after the period of the appointments ban; when there is already a quorum in the
JBC; or when there is already at least three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice (or Justice of this Court) on or before the occurrence of
the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the shortlist to the President on or
before the occurrence of the vacancy in the Court runs counter to the Concom
deliberations which explain that the 90-day period is allotted for both the nomination by the JBC
and the appointment by the President. In the move to increase the period to 90 days,
Commissioner Romulo stated that "[t]he sense of the Committee is that 60 days is awfully short
and that the [Judicial and Bar] Council, as well as the President, may have difficulties with that."
2. To require the JBC to submit to the President a shortlist of nominees on or before the
occurrence of vacancy in the Court leads to preposterous results. It bears reiterating that the
requirement is absurd when, inter alia, the vacancy is occasioned by the death of a member of
the Court, in which case the JBC could never anticipate the death of a Justice, and could never
submit a list to the President on or before the occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period of vacancy in the membership of
the Court rebuts any public policy argument on avoiding a vacuum of even a single day without a
duly appointed Chief Justice. Moreover, as pointed out in my Dissenting Opinion, the practice of
having an acting Chief Justice in the interregnum is provided for by law, confirmed by tradition,
and settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for Reconsideration, failed to rebut the
foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the Decision of
March 17, 2010 insofar as it holds that the incumbent President is not constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30, 2010 and that the Judicial and Bar Council is obliged to submit to the
President the shortlist of nominees for the position of Chief Justice on or before May 17, 2010.
CONCHITA CARPIO MORALES

Associate Justice
CONCURRING AND DISSENTING OPINION
BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the arguments are largely the same
arguments that we have passed upon, in one form or another, in the various petitions. Essentially, the
issues boil down to justiciability; the conflict of constitutional provisions; the merits of the cited
constitutional deliberations; and the status and effect of the Valenzuela 1 ruling. Even the motion for
reconsideration of the Philippine Bar Association (G.R. No. 191420), whose petition I did not expressly
touch upon in my Separate Opinion, basically dwells on these issues.
I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as my basic
response to the motions for reconsideration, supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices joined),3 the election appointment ban
under Article VII, Section 15 of the Constitution should not apply to the appointment of Members of the
Supreme Court whose period for appointment is separately provided for under Article VIII, Section 4(1). I
shared this conclusion with the Court’s Decision although our reasons differed on some points.
I diverged fully from the Decision on the question of whether we should maintain or reverse our ruling in
Valenzuela. I maintained that it is still good law; no reason exists to touch the ruling as its main focus –
the application of the election ban on the appointment of lower court judges under Article VIII, Section 9 of
the Constitution – is not even an issue in the present case and was discussed only because the petitions
incorrectly cited the ruling as authority on the issue of the Chief Justice’s appointment. The Decision
proposed to reverse Valenzuela but only secured the support of five (5) votes, while my Separate Opinion
in support of Valenzuela had four (4) votes. Thus, on the whole, the Decision did not prevail in reversing
Valenzuela, as it only had five (5) votes in a field of 12 participating Members of the Court. Valenzuela
should therefore remain, as of the filing of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in denying the motions with respect
to the Chief Justice issue, although we differ in some respects on the reasons supporting the denial. I
dissent from the conclusion that the Valenzuela ruling should be reversed. My divergence from the
majority’s reasons and conclusions compels me to write this Concurring and Dissenting Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate Opinion is our approach on the basic
requisites/justiciability issues. The Decision apparently glossed over this aspect of the case, while I fully
explained why the De Castro4 and Peralta5 petitions should be dismissed outright. In my view, these
petitions violated the most basic requirements of their chosen medium for review – a petition for certiorari
and mandamus under Rule 65 of the Rules of Court.
The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial or quasi-
judicial functions, an allegation that the petitions could not really make, since the JBC does not really
undertake these functions and, for this reason, cannot be the subject of a petition for certiorari; hence, the
petitions should be dismissed outright. They likewise failed to facially show any failure or refusal by the
JBC to undertake a constitutional duty to justify the issuance of a writ of mandamus; they invoked judicial
notice that we could not give because there was, and is, no JBC refusal to act.6 Thus, the mandamus
aspects of these petitions should have also been dismissed outright. The ponencia, unfortunately, failed
to fully discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an actual case or controversy
that made the Chief Justice’s appointment a justiciable issue. They claim that the Court cannot exercise
the power of judicial review where there is no clash of legal rights and interests or where this clash is
merely anticipated, although the anticipated event shall come with certainty. 7
What the movants apparently forgot, focused as they were on their respective petitions, is that the
present case is not a single-petition case that rises or falls on the strength of that single petition. The
present case involves various petitions and interventions,8 not necessarily pulling towards the same
direction, although each one is focused on the issue of whether the election appointment ban under
Article VII, Section 15 of the Constitution should apply to the appointment of the next Chief Justice of the
Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032) and
Mendoza (A.M. No. 10-2-5-SC). The first two are petitions for prohibition under Section 2 of Rule 65 of
the Rules of Court.9 While they commonly share this medium of review, they differ in their supporting
reasons. The Mendoza petition, on the other hand, is totally different – it is a petition presented as an
administrative matter (A.M.) in the manner that the Valenzuela case was an A.M. case. As I pointed out in
the Separate Opinion, the Court uses the A.M. docket designation on matters relating to its exercise of
supervision over all courts and their personnel.10 I failed to note then, but I make of record now, that court
rules and regulations – the outputs in the Court’s rulemaking function – are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests exists is immediately and
patently obvious in the Tolentino and Soriano petitions. At the time the petitions were filed, the JBC had
started its six-phase nomination process that would culminate in the submission of a list of nominees to
the President of the Philippines for appointive action. Tolentino and Soriano – lawyers and citizens with
interest in the strict observance of the election ban – sought to prohibit the JBC from continuing with this
process. The JBC had started to act, without any prodding from the Court, because of its duty to start the
nomination process but was hampered by the petitions filed and the legal questions raised that only the
Supreme Court can settle with finality.11 Thus, a clash of interests based on law existed between the
petitioners and the JBC. To state the obvious, a decision in favor of Tolentino or Soriano would result in a
writ of prohibition that would direct the JBC not to proceed with the nomination process.
The Mendoza petition cited the effect of a complete election ban on judicial appointments (in view of the
already high level of vacancies and the backlog of cases) as basis, and submitted the question as an
administrative matter that the Court, in the exercise of its supervisory authority over the Judiciary and the
JBC itself, should act upon. At the same time, it cited the "public discourse and controversy" now taking
place because of the application of the election ban on the appointment of the Chief Justice, pointing in
this regard to the very same reasons mentioned in Valenzuela about the need to resolve the issue and
avoid the recurrence of conflict between the Executive and the Judiciary, and the need to "avoid polemics
concerning the matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the election
ban took place, no such obvious triggering event transpired in the Mendoza petition.13 Rather, the
Mendoza petition looked to the supervisory power of the Court over judicial personnel and over the JBC
as basis to secure a resolution of the election ban issue. The JBC, at that time, had indicated its intent to
look up to the Court’s supervisory power and role as the final interpreter of the Constitution to guide it in
responding to the challenges it confronts.14 To me, this was "a point no less critical, from the point of view
of supervision, than the appointment of the two judges during the election ban period in Valenzuela."15
In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding realities
evident from the confluence of events, namely: (1) an election to be held on May 10, 2010; (2) the
retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the elective officials from the
President to the congressmen on June 30, 2010; (4) the delay before the Congress can organize and
send its JBC representatives; and (5) the expiration of the term of a non-elective JBC member in July
2010.16 All these – juxtaposed with the Court’s supervision over the JBC, the latter’s need for guidance,
and the existence of an actual controversy on the same issues bedeviling the JBC – in my view, were
sufficient to save the Mendoza petition from being a mere request for opinion or a petition for declaratory
relief that falls under the jurisdiction of the lower court. This recognition is beyond the level of what this
Court can do in handling a moot and academic case – usually, one that no longer presents a judiciable
controversy but one that can still be ruled upon at the discretion of the court when the constitutional issue
is of paramount public interest and controlling principles are needed to guide the bench, the bar and the
public.17
To be sure, this approach in recognizing when a petition is actionable is novel. An overriding reason for
this approach can be traced to the nature of the petition, as it rests on the Court’s supervisory authority
and relates to the exercise of the Court’s administrative rather than its judicial functions (other than these
two functions, the Court also has its rulemaking function under Article VIII, Section 5(5) of the
Constitution). Strictly speaking, the Mendoza petition calls for directions from the Court in the exercise of
its power of supervision over the JBC,18 not on the basis of the power of judicial review.19 In this sense, it
does not need the actual clash of interests of the type that a judicial adjudication requires. All that must be
shown is the active need for supervision to justify the Court’s intervention as supervising authority.
Under these circumstances, the Court’s recognition of the Mendoza petition was not an undue stretch of
its constitutional powers. If the recognition is unusual at all, it is so only because of its novelty; to my
knowledge, this is the first time ever in Philippine jurisprudence that the supervisory authority of the Court
over an attached agency has been highlighted in this manner. Novelty, per se, however, is not a ground
for objection nor a mark of infirmity for as long as the novel move is founded in law. In this case, as in the
case of the writ of amparo and habeas data that were then novel and avowedly activist in character,
sufficient legal basis exists to actively invoke the Court’s supervisory authority – granted under the
Constitution, no less – as basis for action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A Judicial
and Bar Council is hereby created under the supervision of the Supreme Court… It may exercise such
other functions and duties as the Supreme Court may assign to it." Supervision, as a legal concept, more
often than not, is defined in relation with the concept of control. 20 In Social Justice Society v. Atienza,21 we
defined "supervision" as follows:
[Supervision] means overseeing or the power or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the other hand, means the power of an
officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of
his duties and to substitute the judgment of the former for that of the latter.
Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e., who to
recommend or what standards to use to determine who to recommend. It cannot even direct the JBC on
how and when to do its duty, but it can, under its power of supervision, direct the JBC to "take such action
or step as prescribed by law to make them perform their duties," if the duties are not being performed
because of JBC’s fault or inaction, or because of extraneous factors affecting performance. Note in this
regard that, constitutionally, the Court can also assign the JBC other functions and duties – a power that
suggests authority beyond what is purely supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions that
require interpretation,22 the Court is not legally out of line – as the final authority on the interpretation of
the Constitution and as the entity constitutionally-tasked to supervise the JBC – in exercising its oversight
function by clarifying the interpretation of the disputed constitutional provision to guide the JBC. In doing
this, the Court is not simply rendering a general legal advisory; it is providing concrete and specific legal
guidance to the JBC in the exercise of its supervisory authority, after the latter has asked for assistance in
this regard. That the Court does this while concretely resolving actual controversies (the Tolentino and
Soriano petitions) on the same issue immeasurably strengthens the intrinsic correctness of the Court’s
action.
It may be asked: why does the Court have to recognize the Mendoza petition when it can resolve the
conflict between Article VII, Section 15 and Article VIII, Section 4(1) through the Tolentino and Soriano
petitions?
The answer is fairly simple and can be read between the lines of the above explanation on the
relationship between the Court and the JBC. First, administrative is different from judicial function and
providing guidance to the JBC can only be appropriate in the discharge of the Court’s administrative
function. Second, the resolution of the Tolentino and Soriano petitions will lead to rulings directly related
to the underlying facts of these petitions, without clear guidelines to the JBC on the proper parameters to
observe vis-à-vis the constitutional dispute along the lines the JBC needs. In fact, concrete guidelines
addressed to the JBC in the resolution of the Tolentino/Soriano petitions may even lead to accusations
that the Court’s resolution is broader than is required by the facts of the petitions. The Mendoza petition,
because it pertains directly to the performance of the JBC’s duty and the Court’s supervisory authority,
allows the issuance of precise guidelines that will enable the JBC to fully and seasonably comply with its
constitutional mandate.
I hasten to add that the JBC’s constitutional task is not as simple as some people think it to be. The
process of preparing and submitting a list of nominees is an arduous and time-consuming task that
cannot be done overnight. It is a six-step process lined with standards requiring the JBC to attract the
best available candidates, to examine and investigate them, to exhibit transparency in all its actions while
ensuring that these actions conform to constitutional and statutory standards (such as the election ban on
appointments), to submit the required list of nominees on time, and to ensure as well that all these acts
are politically neutral. On the time element, the JBC list for the Supreme Court has to be submitted on or
before the vacancy occurs given the 90-day deadline that the appointing President is given in making the
appointment. The list will be submitted, not to the President as an outgoing President, nor to the election
winner as an incoming President, but to the President of the Philippines whoever he or she may be. If the
incumbent President does not act on the JBC list within the time left in her term, the same list shall be
available to the new President for him to act upon. In all these, the Supreme Court bears the burden of
overseeing that the JBC’s duty is done, unerringly and with utmost dispatch; the Court cannot undertake
this supervision in a manner consistent with the Constitution’s expectation from the JBC unless it adopts
a pro-active stance within the limits of its supervisory authority.
The Disputed Provisions
The movants present their arguments on the main issue at several levels. Some argue that the disputed
constitutional provisions – Article VII, Section 15 and Article VIII, Section 4(1) – are clear and speak for
themselves on what the Constitution covers in banning appointments during the election period. 23 One
even posits that there is no conflict because both provisions can be given effect without one detracting
against the full effectiveness of the other,24 although the effect is to deny the sitting President the option
to appoint in favor of a deferment for the incoming President’s action. Still others, repeating their original
arguments, appeal to the principles of interpretation and latin maxims to prove their point.25
In my discussions in the Separate Opinion, I stated upfront my views on how the disputed provisions
interact with each other. Read singly and in isolation, they appear clear (this reading applies the "plain
meaning rule" that Tolentino advocates in his motion for reconsideration, as explained below). Arrayed
side by side with each other and considered in relation with the other provisions of the Constitution,
particularly its structure and underlying intents, the conflict however becomes obvious and unavoidable.
Section 15 on its face disallows any appointment in clear negative terms ("shall not make") without
specifying the appointments covered by the prohibition.26 From this literal and isolated reading springs the
argument that no exception is provided (except that found in Section 15 itself) so that even the Judiciary
is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in the
Court shall be filled within 90 days from its occurrence.27 In the way of Section 15, Section 4(1) is also
clear and categorical and provides no exception; the appointment refers solely to the Members of the
Supreme Court and does not mention any period that would interrupt, hold or postpone the 90-day
requirement.
From this perspective, the view that no conflict exists cannot be seriously made, unless with the mindset
that one provision controls and the other should yield. Many of the petitions in fact advocate this kind of
reading, some of them openly stating that the power of appointment should be reserved for the incoming
President.28 The question, however, is whether – from the viewpoint of strict law and devoid of the
emotionalism and political partisanship that permeate the present Philippine political environment – this
kind of mindset can really be adopted in reading and applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the provisions
of the Constitution cannot be read in isolation from what the whole contains. To be exact, the Constitution
must be read and understood as a whole, reconciling and harmonizing apparently conflicting provisions
so that all of them can be given full force and effect,29 unless the Constitution itself expressly states
otherwise.30
Not to be forgotten in reading and understanding the Constitution are the many established underlying
constitutional principles that we have to observe and respect if we are to be true to the Constitution.
These principles – among them the principles of checks and balances and separation of powers – are not
always expressly stated in the Constitution, but no one who believes in and who has studied the
Constitution can deny that they are there and deserve utmost attention, respect, and even priority
consideration.
In establishing the structures of government, the ideal that the Constitution seeks to achieve is one of
balance among the three great departments of government – the Executive, the Legislative and the
Judiciary, with each department undertaking its constitutionally-assigned task as a check against the
exercise of power by the others, while all three departments move forward in working for the progress of
the nation. Thus, the Legislature makes the laws and is supreme in this regard, in the way that the
Executive is supreme in enforcing and administering the law, while the Judiciary interprets both the
Constitution and the law. Any provision in each of the Articles on these three departments 31 that intrudes
into the other must be closely examined if the provision affects and upsets the desired balance.
Under the division of powers, the President as Chief Executive is given the prerogative of making
appointments, subject only to the legal qualification standards, to the checks provided by the Legislature’s
Commission on Appointments (when applicable) and by the JBC for appointments in the Judiciary, and to
the Constitution’s own limitations. Conflict comes in when the Constitution laid down Article VII, Section
15 limiting the President’s appointing power during the election period. This limitation of power would
have been all-encompassing and would, thus, have extended to all government positions the President
can fill, had the Constitution not inserted a provision, also on appointments, in the Article on the Judiciary
with respect to appointments to the Supreme Court. This conflict gives rise to the questions: which
provision should prevail, or should both be given effect? Or should both provisions yield to a higher
concern – the need to maintain the integrity of our elections?
A holistic reading of the Constitution – a must in constitutional interpretation – dictates as a general rule
that the tasks assigned to each department and their limitations should be given full effect to fulfill the
constitutional purposes under the check and balance principle, unless the Constitution itself expressly
indicates its preference for one task, concern or standard over the others, 32 or unless this Court, in its role
as interpreter of the Constitution, has spoken on the appropriate interpretation that should be made. 33
In considering the interests of the Executive and the Judiciary, a holistic approach starts from the premise
that the constitutional scheme is to grant the President the power of appointment, subject to the limitation
provided under Article VII, Section 15. At the same time, the Judiciary is assured, without qualifications
under Article VIII, Section 4(1), of the immediate appointment of Members of the Supreme Court, i.e.,
within 90 days from the occurrence of the vacancy. If both provisions would be allowed to take effect, as I
believe they should, the limitation on the appointment power of the President under Article VII, Section 15
should itself be limited by the appointment of Members of the Court pursuant to Article VIII, Section 4(1),
so that the provision applicable to the Judiciary can be given full effect without detriment to the
President’s appointing authority. This harmonization will result in restoring to the President the full
authority to appoint Members of the Supreme Court pursuant to the combined operation of Article VII,
Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between the
Executive and Judiciary; the President would effectively be allowed to exercise the Executive’s traditional
presidential power of appointment while respecting the Judiciary’s own prerogative. In other words, the
President retains full powers to appoint Members of the Court during the election period, and the
Judiciary is assured of a full membership within the time frame given.
Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from the current
President, but mainly from petitioners echoing the present presidential candidates, one of whom shall
soon be the incoming President. They do not, of course, cite reasons of power and the loss of the
opportunity to appoint the Chief Justice; many of the petitioners/intervenors oppose the full application of
Article VIII, Section 4(1) based on the need to maintain the integrity of the elections through the
avoidance of a "midnight appointment."
This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical plane, as
the integrity of the elections must indeed prevail in a true democracy. The statement, however, begs a lot
of questions, among them the question of whether the appointment of a full Court under the terms of
Article VIII, Section 4(1) will adversely affect or enhance the integrity of the elections.
In my Separate Opinion, I concluded that the appointment of a Member of the Court even during the
election period per se implies no adverse effect on the integrity of the election; a full Court is ideal during
this period in light of the Court’s unique role during elections. I maintain this view and fully concur in this
regard with the majority.
During the election period, the court is not only the interpreter of the Constitution and the election laws;
other than the Commission on Elections and the lower courts to a limited extent, the Court is likewise the
highest impartial recourse available to decisively address any problem or dispute arising from the
election. It is the leader and the highest court in the Judiciary, the only one of the three departments of
government directly unaffected by the election. The Court is likewise the entity entrusted by the
Constitution, no less, with the gravest election-related responsibilities. In particular, it is the sole judge of
all contests in the election of the President and the Vice-President, with leadership and participation as
well in the election tribunals that directly address Senate and House of Representatives electoral
disputes. With this grant of responsibilities, the Constitution itself has spoken on the trust it reposes on
the Court on election matters. This reposed trust, to my mind, renders academic any question of whether
an appointment during the election period will adversely affect the integrity of the elections – it will not, as
the maintenance of a full Court in fact contributes to the enforcement of the constitutional scheme to
foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of the partisan political noise of the
coming elections, one cannot avoid hearing echoes from some of the arguments that the objection is
related, more than anything else, to their lack of trust in an appointment to be made by the incumbent
President who will soon be bowing out of office. They label the incumbent President’s act as a "midnight
appointment" – a term that has acquired a pejorative meaning in contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can be made against any appointing
authority, whether outgoing or incoming. The incoming President himself will be before this Court if an
election contest arises; any President, past or future, would also naturally wish favorable outcomes in
legal problems that the Court would resolve. These possibilities and the potential for continuing influence
in the Court, however, cannot be active considerations in resolving the election ban issue as they are, in
their present form and presentation, all speculative. If past record is to be the measure, the record of past
Chief Justices and of this Court speaks for itself with respect to the Justices’ relationship with, and
deferral to, the appointing authority in their decisions.
What should not be forgotten in examining the records of the Court, from the prism of problems an
electoral exercise may bring, is the Court’s unique and proven capacity to intervene and diffuse situations
that are potentially explosive for the nation. EDSA II particularly comes to mind in this regard (although it
was an event that was not rooted in election problems) as it is a perfect example of the potential for
damage to the nation that the Court can address and has addressed. When acting in this role, a vacancy
in the Court is not only a vote less, but a significant contribution less in the Court’s deliberations and
capacity for action, especially if the missing voice is the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming elections, it will be compounded by
the lack of leaders because of the lapse of the President’s term by June 30, 2010; by a possible failure of
succession if for some reason the election of the new leadership becomes problematic; and by the similar
absence of congressional leadership because Congress has not yet convened to organize itself. 34 In this
scenario, only the Judiciary of the three great departments of government stands unaffected by the
election and should at least therefore be complete to enable it to discharge its constitutional role to its
fullest potential and capacity. To state the obvious, leaving the Judiciary without any permanent leader in
this scenario may immeasurably complicate the problem, as all three departments of government will then
be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice will make
a lot of difference in the effectiveness of the Court as he or she heads the Judiciary, sits as Chair of the
JBC and of the Presidential Electoral Tribunal, presides over impeachment proceedings, and provides the
moral suasion and leadership that only the permanent mantle of the Chief Justice can bestow. EDSA II is
just one of the many lessons from the past when the weightiest of issues were tackled and promptly
resolved by the Court. Unseen by the general public in all these was the leadership that was there to
ensure that the Court would act as one, in the spirit of harmony and stability although divergent in their
individual views, as the Justices individually make their contributions to the collegial result. To some, this
leadership may only be symbolic, as the Court has fully functioned in the past even with an incomplete
membership or under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole
Supreme Court; it will only be a Court with 14 members who would act and vote on all matters before it."
To fully recall what I have said on this matter:
The importance of the presence of one Member of the Court can and should never be underestimated,
particularly on issues that may gravely affect the nation. Many a case has been won or lost on the basis
of one vote. On an issue of the constitutionality of a law, treaty or statute, a tie vote – which is possible in
a 14 member court – means that the constitutionality is upheld. This was our lesson in Isagani Cruz v.
DENR Secretary.
More than the vote, Court deliberation is the core of the decision-making process and one voice is less is
not only a vote less but a contributed opinion, an observation, or a cautionary word less for the Court.
One voice can be a big difference if the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the Court of a
permanent sitting Chief Justice cannot be equaled. He is the first among equals – a primus inter pares –
who sets the tone for the Court and the Judiciary, and who is looked up to on all matters, whether
administrative or judicial. To the world outside the Judiciary, he is the personification of the Court and the
whole Judiciary. And this is not surprising since, as Chief Justice, he not only chairs the Court en banc,
but chairs as well the Presidential Electoral Tribunal that sits in judgment over election disputes affecting
the President and the Vice-President. Outside of his immediate Court duties, he sits as Chair of the
Judicial and Bar Council, the Philippine Judicial Academy and, by constitutional command, presides over
the impeachment of the President. To be sure, the Acting Chief Justice may be the ablest, but he is not
the Chief Justice without the mantle and permanent title of the Office, and even his presence as Acting
Chief Justice leaves the Court with one member less. Sadly, this member is the Chief Justice; even with
an Acting Chief Justice, the Judiciary and the Court remains headless. 35
Given these views, I see no point in re-discussing the finer points of technical interpretation and their
supporting latin maxims that I have addressed in my Separate Opinion and now feel need no further
elaboration; maxims can be found to serve a pleader’s every need and in any case are the last
interpretative tools in constitutional interpretation. Nor do I see any point in discussing arguments based
on the intent of the framers of the Constitution now cited by the parties in the contexts that would serve
their own ends. As may be evident in these discussions, other than the texts of the disputed provisions, I
prefer to examine their purposes and the consequences of their application, understood within the context
of democratic values. Past precedents are equally invaluable for the lead, order, and stability they
contribute, but only if they are in point, certain, and still alive to current realities, while the history of
provisions, including the intents behind them, are primarily important to ascertain the purposes the
provisions serve.
From these perspectives and without denigrating the framers’ historical contributions, I say that it is the
Constitution that now primarily speaks to us in this case and what we hear are its direct words, not merely
the recorded isolated debates reflecting the personal intents of the constitutional commissioners as cited
by the parties to fit their respective theories. The voice speaking the words of the Constitution is our best
guide, as these words will unalterably be there for us to read in the context of their purposes and the
nation’s needs and circumstances. This Concurring and Dissenting Opinion hears and listens to that
voice.
The Valenzuela Decision
The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the present case, since at issue
here is the appointment of the Chief Justice during the period of the election ban, not the appointment of
lower court judges that Valenzuela resolved. To be perfectly clear, the conflict in the constitutional
provisions is not confined to Article VII, Section 15 and Article VIII, Section 4(1) with respect to the
appointment of Members of the Supreme Court; even before the Valenzuela ruling, the conflict already
existed between Article VII, Section 15 and Article VIII, Section 9 – the provision on the appointment of
the justices and judges of courts lower than the Supreme Court. After this Court’s ruling in Valenzuela, no
amount of hairsplitting can result in the conclusion that Article VII, Section 15 applied the election ban
over the whole Judiciary, including the Supreme Court, as the facts and the fallo of Valenzuela plainly
spoke of the objectionable appointment of two Regional Trial Court judges. To reiterate, Valenzuela only
resolved the conflict between Article VII, Section 15 and appointments to the Judiciary under Article VIII,
Section 9.
If Valenzuela did prominently figure at all in the present case, the prominence can be attributed to the
petitioners’ mistaken reading that this case is primary authority for the dictum that Article VII, Section 15
completely bans all appointments to the Judiciary, including appointments to the Supreme Court, during
the election period up to the end of the incumbent President’s term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for its
primary precedential value. This legal situation still holds true as Valenzuela was not doctrinally reversed
as its proposed reversal was supported only by five (5) out of the 12 participating Members of the Court.
In other words, this ruling on how Article VII, Section 15 is to be interpreted in relation with Article VIII,
Section 9, should continue to stand unless otherwise expressly reversed by this Court.
But separately from the mistaken use of an obiter ruling as primary authority, I believe that I should sound
the alarm bell about the Valenzuela ruling in light of a recent vacancy in the position of Presiding Justice
of the Sandiganbayan resulting from Presiding Justice Norberto Geraldez’s death soon after we issued
the decision in the present case. Reversing the Valenzuela ruling now, in the absence of a properly filed
case addressing an appointment at this time to the Sandiganbayan or to any other vacancy in the lower
courts, will be an irregular ruling of the first magnitude by this Court, as it will effectively be a shortcut that
lifts the election ban on appointments to the lower courts without the benefit of a case whose facts and
arguments would directly confront the continued validity of the Valenzuela ruling. This is especially so
after we have placed the Court on notice that a reversal of Valenzuela is uncalled for because its ruling is
not the litigated issue in this case.
In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests on the
reasoning that the evils Section 15 seeks to remedy – vote buying, midnight appointments and partisan
reasons to influence the elections – exist, thus justifying an election appointment ban. In particular, the
"midnight appointment" justification, while fully applicable to the more numerous vacancies at the lower
echelons of the Judiciary (with an alleged current lower court vacancy level of 537 or a 24.5% vacancy
rate), should not apply to the Supreme Court which has only a total of 15 positions that are not even
vacated at the same time. The most number of vacancies for any one year occurred only last year (2009)
when seven (7) positions were vacated by retirement, but this vacancy rate is not expected to be
replicated at any time within the next decade. Thus "midnight appointments" to the extent that they were
understood in Aytona36 will not occur in the vacancies of this Court as nominations to its vacancies are all
processed through the JBC under the public’s close scrutiny. As already discussed above, the
institutional integrity of the Court is hardly an issue. If at all, only objections personal to the individual
Members of the Court or against the individual applicants can be made, but these are matters addressed
in the first place by the JBC before nominees are submitted. There, too, are specific reasons, likewise
discussed above, explaining why the election ban should not apply to the Supreme Court. These
exempting reasons, of course, have yet to be shown to apply to the lower courts. Thus, on the whole, the
reasons justifying the election ban in Valenzuela still obtain in so far as the lower courts are concerned,
and have yet to be proven otherwise in a properly filed case. Until then, Valenzuela, except to the extent
that it mentioned Section 4(1), should remain an authoritative ruling of this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from performing its
principal function, under the Constitution, of recommending nominees for the position of Chief Justice.
Thus, I vote to deny with finality the Tolentino and Soriano motions for reconsideration.
The other motions for reconsideration in so far as they challenge the conclusion that the President can
appoint the Chief Justice even during the election period are likewise denied with finality for lack of merit,
but are granted in so far as they support the continued validity of the ruling of this Court in In Re:
Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice
\
EN BANC
[G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate
and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House
of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES,
both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-
KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO,
LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO
BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-
ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA RASUL,
RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their
respective capacities as members of the Philippine Senate who concurred in the
ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and
Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in
his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as
Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs;
and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership
thereto of the vast majority of countries has revolutionized international business and economic relations
amongst states. It has irreversibly propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the third-millennium buzz words,
are ushering in a new borderless world of business by sweeping away as mere historical relics the
heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies,
import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and
becoming the best in specific industries in a market-driven and export-oriented global scenario are
replacing age-old beggar-thy-neighbor policies that unilaterally protect weak and inefficient domestic
producers of goods and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic economic growth and
prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions -- inspired by that grand political body, the United Nations --
were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second,
the International Monetary Fund (IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order and predictability in world trade and to
minimize unilateral protectionist policies that invite challenge, even retaliation, from other
states. However, for a variety of reasons, including its non-ratification by the United States, the ITO,
unlike the IMF and WB, never took off. What remained was only GATT -- the General Agreement on
Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or dependable system of dispute
settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body -- the World
Trade Organization -- with the signing of the Final Act in Marrakesh, Morocco and the ratification of the
WTO Agreement by its members.[1]
Like many other developing countries, the Philippines joined WTO as a founding member with the
goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving
Philippine access to foreign markets, especially its major trading partners, through the reduction of tariffs
on its exports, particularly agricultural and industrial products. The President also saw in the WTO the
opening of new opportunities for the services sector x x x, (the reduction of) costs and uncertainty
associated with exporting x x x, and (the attraction of) more investments into the country. Although the
Chief Executive did not expressly mention it in his letter, the Philippines - - and this is of special interest to
the legal profession - - will benefit from the WTO system of dispute settlement by judicial adjudication
through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal.Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived
at frequently on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped
countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to place nationals and products of member-
countries on the same footing as Filipinos and local products and (2) that the WTO intrudes, limits and/or
impairs the constitutional powers of both Congress and the Supreme Court, the instant petition before this
Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to develop a self-
reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally
produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it prescribe Philippine integration into a global economy
that is liberalized, deregulated and privatized? These are the main questions raised in this petition
for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public officials and employees, as well as the
use of government properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of

the Department of Trade and Industry (Secretary Navarro, for brevity), representing the Government of
the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of
the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994
from the President of the Philippines,[3] stating among others that the Uruguay Round Final Act is hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines[4] likewise dated August 11, 1994, which stated among others that the
Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the immediate
adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of the Agreement Establishing
the World Trade Organization.[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved, as it is
hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization.[6] The text of the WTO
Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral
Trade Negotiations and includes various agreements and associated legal instruments (identified in the
said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin

Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed [7] the Instrument of Ratification,
declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines,
after having seen and considered the aforementioned Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15
April 1994, do hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and the associated legal instruments included in Annexes one (1), two (2) and three
(3) of that Agreement which are integral parts thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum dated
May 13, 1996,[8] the Solicitor General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of
WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of financial services, commercial presence and
new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents
comment and petitioners reply thereto, the Court resolved on December 12, 1995, to give due course to
the petition, and the parties thereafter filed their respective memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as Bautista Paper, [9] for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to
the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2)
copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as
possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of
the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated
October 24, 1996, he listed the various bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance
dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting
leading to the concurrence are estopped from impugning the validity of the Agreement
Establishing the World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene
the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit,
restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is vested in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the
exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they voted for concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they concurred only in the ratification of the Agreement
Establishing the World Trade Organization, and not with the Presidential submission which
included the Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents synthesized the several issues
raised by petitioners into the following:[10]
1. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of
the Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the
Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor
General has effectively ignored three, namely: (1) whether the petition presents a political question or is
otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna
Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the
Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a matter that probes into
the very jurisdiction of this Court to hear and decide this case -- was deliberated upon by the Court and
will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents
have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled
in respondents favor, will not cause the petitions dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up
as an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public interest requires that the
substantive issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH
THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR
IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF
JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE
THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the Constitution is upheld. [12] Once a controversy
as to the application or interpretation of a constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide.[13]
The jurisdiction of this Court to adjudicate the matters [14] raised in the petition is clearly set out in the
1987 Constitution,[15] as follows:
which are legally demandable and enforceable, and to determine whether or not there has been a grave
of the government.
The foregoing text emphasizes the judicial departments duty and power to strike down grave abuse
of discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law.[16] As explained by former Chief Justice Roberto Concepcion,[17] the
judiciary is the final arbiter on the question of whether or not a branch of 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. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases, [18] it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be
given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On
this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass
upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule
on the propriety of the governments economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty
to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution mandating economic
nationalism are violated by the so-called parity provisions and national treatment clauses scattered in
various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II, and Secs. 10 and
12, Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum:[19]
a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994. no Member shall apply
any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in
the Annex to this Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in
paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable
under domestic law or under administrative rulings, or compliance with which is necessary
to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic
source, whether specified in terms of particular products, in terms of volume or value of
products, or in terms of proportion of volume or value of its local production; or
(b) that an enterprises purchases or use of imported products be limited to an amount related to
the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production that it
exports;
(b) the importation by an enterprise of products used in or related to its local production by
restricting its access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of volume
or value of products, or in terms of a preparation of volume or value of its local
production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round Legal Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national
origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale,
purchase, transportation, distribution or use. the provisions of this paragraph shall not prevent the
application of differential internal transportation charges which are based exclusively on the economic
operation of the means of transport and not on the nationality of the product. (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-
84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p.177, emphasis supplied).
b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable than
that it accords to its own nationals with regard to the protection of intellectual property... (par. 1, Article
3, Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out
therein, each Member shall accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment no less favourable than
it accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and service
suppliers of any other Member, either formally identical treatment or formally different
treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it

modifies the conditions of completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member. (Article XVII, General
Agreement on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment and parity provisions of the WTO
Agreement place nationals and products of member countries on the same footing as Filipinos and local
products, in contravention of the Filipino First policy of the Constitution. They allegedly render
meaningless the phrase effectively controlled by Filipinos. The constitutional conflict becomes more
manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to
ensure the conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements.[20] Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not be read in isolation but should be related to
other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited
WTO clauses do not conflict with the Constitution; and (4) that the WTO Agreement contains sufficient
provisions to protect developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of principles and state policies. The
counterpart of this article in the 1935 Constitution[21] is called the basic political creed of the nation by
Dean Vicente Sinco.[22] These principles in Article II are not intended to be self-executing principles ready
for enforcement through the courts.[23] They are used by the judiciary as aids or as guides in the exercise
of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato,[24] the principles and state policies enumerated in Article II and
some sections of Article XII are not self-executing provisions, the disregard of which can give rise to a
cause of action in the courts.They do not embody judicially enforceable constitutional rights but guidelines
for legislation.
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles need legislative
enactments to implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and policies. As such, they are basically not self-executing, meaning a law should be passed by
Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the directives of the article, the available
remedy was not judicial but political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of broad constitutional
principles are sourced from basic considerations of due process and the lack of judicial authority to wade
into the uncharted ocean of social and economic policy making. Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right -- a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution --
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind,
the court should be understood as simply saying that such a more specific legal right or rights may well
exist in our corpus of law, considering the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2)
reasons.One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently and
effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. x x x
which are legally demandable and enforceable, and to determine whether or not there has been a grave
of the Government. (Emphases supplied)
When substantive standards as general as the right to a balanced and healthy ecology and the right to
health are combined with remedial standards as broad ranging as a grave abuse of discretion amounting
to lack or excess of jurisdiction, the result will be, it is respectfully submitted, to propel courts into the
uncharted ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and standards are
shown to exist, then the policy making departments -- the legislative and executive departments -- must
be given a real and effective opportunity to fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:
Section 1. The goals of the national economy are a more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development
and agrarian reform, through industries that make full and efficient use of human and natural resources,
and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit of
the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony[27] and in the use of Filipino labor, domestic materials and
locally-produced goods; (2) by mandating the State to adopt measures that help make them
competitive;[28] and (3) by requiring the State to develop a self-reliant and independent national economy
effectively controlled by Filipinos.[29] In similar language, the Constitution takes into account the realities of
the outside world as it requires the pursuit of a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity; [30] and speaks of industries
which are competitive in both domestic and foreign markets as well as of the protection of Filipino
enterprises against unfair foreign competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et
al.,[31] this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. However, as the constitutional provision itself states, it is
enforceable only in regard to the grants of rights, privileges and concessions covering national economy
and patrimony and not to every aspect of trade and commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather,
the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the
Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on
the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair.[32] In other words, the Constitution did not intend to pursue
an isolationist policy. It did not shut out foreign investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange
on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to
protect weak and developing economies, which comprise the vast majority of its members. Unlike in the
UN where major states have permanent seats and veto powers in the Security Council, in the WTO,
decisions are made on the basis of sovereign equality, with each members vote equal in weight to that of
any other. There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of
the Agreement or waiver of the obligation of a member which would require three fourths
vote. Amendments would require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals. [33]
Hence, poor countries can protect their common interests more effectively through the WTO than
through one-on-one negotiations with developed countries. Within the WTO, developing countries can
form powerful blocs to push their economic agenda more decisively than outside the Organization. This is
not merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic
principles underlying the WTO Agreement recognize the need of developing countries like the Philippines
to share in the growth in international trade commensurate with the needs of their economic
development. These basic principles are found in the preamble[34] of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a
view to raising standards of living, ensuring full employment and a large and steadily growing volume of
real income and effective demand, and expanding the production of and trade in goods and services,
while allowing for the optimal use of the worlds resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance the means for doing
so in a manner consistent with their respective needs and concerns at different levels of economic
development,
Recognizing further that there is need for positive efforts designed to ensure that developing countries,
and especially the least developed among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to
the elimination of discriminatory treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts,
and all of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this multilateral
trading system, x x x. (underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs in
general, preferential treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be effected within a period of six (6)
years while developing countries -- including the Philippines -- are required to effect an average tariff
reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce
their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21%
within a period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of
that prescribed for developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade
practices including anti-dumping measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail of
these measures. There is hardly therefore any basis for the statement that under the WTO, local
industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the
economy. Quite the contrary, the weaker situations of developing nations like the Philippines have been
taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have
gravely abused their discretion.True, they have made a bold decision to steer the ship of state into the yet
uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe only in other
economic policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon the
advantages and disadvantages of trade liberalization as an economic policy. It will only perform its
constitutional duty of determining whether the Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent national economy[35] does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
economic seclusion nor mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly aware of

overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities. [36]
The WTO reliance on most favored nation, national treatment, and trade without discrimination
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to
all WTO members. Aside from envisioning a trade policy based on equality and reciprocity, [37] the
fundamental law encourages industries that are competitive in both domestic and foreign markets,
thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of
the gradual development of robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under
a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise,
nor does it contain any specific pronouncement that Filipino companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to make
available to the Filipino consumer the best goods and services obtainable anywhere in the world at the
most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -- as promised by
its promoters -- expand the countrys exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most
reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers thereto
are not subject to judicial pronouncements based on grave abuse of discretion.
Constitution Designed to Meet Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and
ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its
framers might not have anticipated the advent of a borderless world of business. By the same token, the
United Nations was not yet in existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have contemplated a diminution of the
absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering
part of its control over its foreign relations to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is
to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist[38] explains:
The Constitution must be quintessential rather than superficial, the root and not the blossom, the base
and framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape,
not in a twinkling by mandate of our delegates, but slowly in the crucible of Filipino minds and hearts,
where it will in time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society
it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements.[39] Petitioners maintain that this undertaking unduly limits, restricts and impairs Philippine
sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine
Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the
Philippines because this means that Congress could not pass legislation that will be good for our national
interest and general welfare if such legislation will not conform with the WTO Agreement, which not only
relates to the trade in goods x x x but also to the flow of investments and money x x x as well as to a
whole slew of agreements on socio-cultural matters x x x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is
lodged in the Congress.[41] And while the Constitution allows Congress to authorize the President to fix
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such
authority is subject to specified limits and x x x such limitations and restrictions as Congress may
provide,[42] as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their
arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed
to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity, with all nations."[43] By the doctrine of incorporation, the country is bound
by generally accepted principles of international law, which are considered to be automatically part of our
own laws.[44] One of the oldest and most fundamental rules in international law is pacta sunt servanda --
international agreements must be performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.[45]
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits
granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of
territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in
peace and the establishment of international organizations. [46] The sovereignty of a state therefore cannot
in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty
stipulations. As aptly put by John F. Kennedy, Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of interdependence is here.[47]
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented
to restrict its sovereign rights under the concept of sovereignty as auto-limitation.47-A Under Article 2 of the
UN Charter, (a)ll members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state against which
the United Nations is taking preventive or enforcement action. Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for the peace-
keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle East and in the
Congo were expenses of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all
its members must bear their corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees
with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its
representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although sovereign equality and
domestic jurisdiction of all members are set forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement measures decided by the Security Council for the
maintenance of international peace and security under Chapter VII of the Charter. A final example: under
Article 103, (i)n the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their obligation
under the present charter shall prevail, thus unquestionably denying the Philippines -- as a member -- the
sovereign power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts -- both
bilateral and multilateral -- that involve limitations on Philippine sovereignty. These are enumerated by the
Solicitor General in his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income received in the Philippines by, among
others, the Federal Reserve Bank of the United States, the Export/Import Bank of the United
States, the Overseas Private Investment Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations paid by the United States to its citizens
for labor and personal services performed by them as employees or officials of the United
States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation
with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating
oils, spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese and Korean air carriers under separate air
service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn
in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable and its agents can not enter said premises
without consent of the Head of Mission concerned. Special Missions are also exempted from
customs duties, taxes and related charges.
(k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any question of international law, the existence
of any fact which, if established, would constitute a breach of international obligation.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same
privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes
the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of
the sea, or trade, constrain domestic political sovereignty through the assumption of external
obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we
accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss
of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined
substantive norms and objective dispute resolution procedures reduce the risks of larger countries
exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of
legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade
liberalization. This is due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success to the smaller
countrys market.[48]
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of x x x cooperation
and amity with all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [49]intrudes on the power of
the Supreme Court to promulgate rules concerning pleading, practice and procedures. [50]
To understand the scope and meaning of Article 34, TRIPS, [51] it will be fruitful to restate its full text
as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner
referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining
a product, the judicial authorities shall have the authority to order the defendant to prove that the
process to obtain an identical product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the
owner of the patent has been unable through reasonable efforts to determine the process
actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on
the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (note the words in the
absence of proof to the contrary) presumption that a product shown to be identical to one produced with
the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the patented product is new, or (2) where there is
substantial likelihood that the identical product was made with the use of the said patented process but
the owner of the patent could not determine the exact process used in obtaining such identical
product. Hence, the burden of proof contemplated by Article 34 should actually be understood as the duty
of the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually
refers to the burden of evidence (burden of going forward) placed on the producer of the identical (or
fake) product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it is identical to the genuine one produced by the
patented process and the fact of newness of the genuine product or the fact of substantial likelihood that
the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law
on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of patented design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented design
or utility model. Identity or substantial identity with the patented design or utility model shall constitute
evidence of copying. (underscoring supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process is NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been able
through reasonable effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing the provisions of
TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue --
derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the reciprocity
clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the concept of adversarial dispute
settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks
and copyrights, the adjustment in legislation and rules of procedure will not be substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in
the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes -- but not in
the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services -- is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it
is in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of the
President to the Senate[53] which enumerated what constitutes the Final Act should have been the subject
of concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument which records the winding up of
the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending
the conference.[54] It is not the treaty itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of the Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations is contained in just one page[55] in Vol. I
of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary
Navarro as representative of the Republic of the Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required
from its signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They
were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of
the members can meet to give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of this Agreement. [56]
The Understanding on Commitments in Financial Services also approved in Marrakesh does not
apply to the Philippines. It applies only to those 27 Members which have indicated in their respective
schedules of commitments on standstill, elimination of monopoly, expansion of operation of existing
financial service suppliers, temporary entry of personnel, free transfer and processing of information, and
national treatment with respect to access to payment, clearing systems and refinancing available in the
normal course of business.[57]
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts,[58] as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of trade relations
among its Members in matters to the agreements and associated legal instruments included in the
Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3 (hereinafter
referred to as Multilateral Agreements) are integral parts of this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
Plurilateral Trade Agreements) are also part of this Agreement for those Members that have
accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create
either obligation or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred
to as GATT 1994) is legally distinct from the General Agreement on Tariffs and Trade, dated 30
October 1947, annexed to the Final Act adopted at the conclusion of the Second Session of the
Preparatory Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended or modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it was concurring in as shown by the
members deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11,
1994,[59] the senators of the Republic minutely dissected what the Senate was concurring in, as
follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day
hearing of this Committee yesterday. Was the observation made by Senator Taada that what was
submitted to the Senate was not the agreement on establishing the World Trade Organization by the final
act of the Uruguay Round which is not the same as the agreement establishing the World Trade
Organization?And on that basis, Senator Tolentino raised a point of order which, however, he agreed to
withdraw upon understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of
briefings for Senators until the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new submission
which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding,
it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones
that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to
the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the
World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw
the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the
Final Act itself. The Constitution does not require us to ratify the Final Act. It requires us to ratify the
Agreement which is now being submitted. The Final Act itself specifies what is going to be submitted to
with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO
Agreement for the consideration of the respective competent authorities with a view to seeking approval
of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures may provide but it is the World Trade
Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the
Constitution and the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had
been adequately reflected in the journal of yesterdays session and I dont see any need for repeating the
same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on
this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the
abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have
no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are
invoking this Courts constitutionally imposed duty to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave
abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction.[61] Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to
a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. [62] Failure on the part
of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. [63]
In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one
of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a
constitutional body independent and coordinate, and thus its actions are presumed regular and done in
good faith. Unless convincing proof and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition
of grave abuse of discretion and the presumption of regularity in the Senates processes, this Court
cannot find any cogent reason to impute grave abuse of discretion to the Senates exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. [64]
It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such principles -
- while serving as judicial and legislative guides -- are not in themselves sources of causes of
action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity and the promotion of industries which
are competitive in both domestic and foreign markets, thereby justifying its acceptance of said treaty. So
too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by
the adoption of the generally accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its sovereign
duty and power. We find no patent and gross arbitrariness or despotism by reason of passion or personal
hostility in such exercise. It is not impossible to surmise that this Court, or at least some of its members,
may even agree with petitioners that it is more advantageous to the national interest to strike down
Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own
judicial power and duty.Ineludably, what the Senate did was a valid exercise of its authority. As to
whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and
review. That is a matter between the elected policy makers and the people. As to whether the nation
should join the worldwide march toward trade liberalization and economic globalization is a matter that
our people should determine in electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance[65] where the East will become the dominant region of the world economically, politically and
culturally in the next century. He refers to the free market espoused by WTO as the catalyst in this coming
Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral trading and the
veritable forum for the development of international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction. Duly enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its on-line experience, and endowed with a vision of
the future, the Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly authorized elected
officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.
EN BANC
[G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos,[1] is invoked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not
self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December
1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the eventual strategic partner, is to provide management
expertise and/or an international marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel.[2] In a close bidding held on 18 September 1995 only
two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which
offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares
at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to
November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will
instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract,
International Marketing/Reservation System Contract or other type of contract specified by the Highest
Bidder in its strategic plan for the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions
are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to
November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the
Government Corporate Counsel) are obtained.[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.[4] In a subsequent letter dated 10
October 1995 petitioner sent a managers check issued by Philtrust Bank for Thirty-three Million Pesos
(P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x
x[5] which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it
by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M.
Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a historical
monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence and its power and
capacity to release the full potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony.[6]Petitioner also argues that since 51% of the shares of the MHC carries
with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism
industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the
shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid
in terms of price per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) x x x x Thus, for the said provision to operate, there must be existing
laws to lay down conditions under which business may be done.[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the
term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna
and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second
paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired therein which make the hotel
historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the
mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony.Moreover, if the disposition of the
shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the
other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the
privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the
Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching
bid is premature since Renong Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no
clear legal right to what it demands and respondents do not have an imperative duty to perform the act
required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from
which it emanates. It has been defined as the fundamental and paramount law of the nation.[10] It
prescribes the permanent framework of a system of government, assigns to the different departments
their respective powers and duties, and establishes certain fixed principles on which government is
founded. The fundamental conception in other words is that it is a supreme law to which all other laws
must conform and in accordance with which all private rights must be determined and all public authority
administered.[11] Under the doctrine of constitutional supremacy, if a law or contract violates any norm of
the constitution that law or contract whether promulgated by the legislative or by the executive branch or
entered into by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely establish an
outline of government providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. [12] A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing.Thus a constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined
by an examination and construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate directly
upon the people in a manner similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body.Hence, unless it is expressly
provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing.If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. [14] This can be cataclysmic. That is why the
prevailing view is, as it has always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing x x x x Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed implementing
statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee
on Style. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS, can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not
qualified. So, why do we not make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word
QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As
against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED
because the existing laws or prospective laws will always lay down conditions under which
business may be done. For example, qualifications on capital, qualifications on the setting
up of other financial structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded
from enacting further laws to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature without impairing the self-
executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe
a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights
secured or the determination thereof, or place reasonable safeguards around the exercise of the
right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of
a self-executing constitutional provision does not render such a provision ineffective in the absence of
such legislation. The omission from a constitution of any express provision for a remedy for enforcing a
right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional
right and make it more available.[17] Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not
self-executing.[18] The argument is flawed. If the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation and operation of enterprises fully owned
by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori,
by the same logic, the second paragraph can only be self-executing as it does not by its language require
any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights - are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation[20] speaks of constitutional provisions on
personal dignity,[21] the sanctity of family life,[22] the vital role of the youth in nation-building,[23] the
promotion of social justice,[24] and the values of education.[25]Tolentino v. Secretary of Finance[26] refers to
constitutional provisions on social justice and human rights [27] and on education.[28] Lastly, Kilosbayan,
Inc. v. Morato[29] cites provisions on the promotion of general welfare,[30] the sanctity of family life,[31] the
vital role of the youth in nation-building[32] and the promotion of total human liberation and
development.[33] A reading of these provisions indeed clearly shows that they are not judicially
enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions
manifest that they are only principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights,
privileges, and concessions covering national economy and patrimony, the State shall give preference to
qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when our Constitution
declares that a right exists in certain specified circumstances an action may be maintained to enforce
such right notwithstanding the absence of any legislation on the subject; consequently, if there is no
statute especially enacted to enforce such constitutional right, such right enforces itself by its own
inherent potency and puissance, and from which all legislations must take their bearings. Where there is
a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission[34] explains -
The patrimony of the Nation that should be conserved and developed refers not only to our
rich natural resources but also to the cultural heritage of our race. It also refers to our
intelligence in arts, sciences and letters. Therefore, we should develop not only our lands,
forests, mines and other natural resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.[35] When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as
the Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930s. It was the
site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official
Guest House of the Philippine Government it plays host to dignitaries and official visitors who are
accorded the traditional Philippine hospitality.[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City.[37] During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected by
the Japanese together with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950s
and 1960s, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d etat where an aspirant for vice-president was proclaimed President of the Philippine
Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that
anyone who acquires or owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes
corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the
1986 Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the
amendment would consist in substituting the words QUALIFIED FILIPINOS with the
following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise
a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a
corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference
should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only
to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos
here, as intended by the proponents, will include not only individual Filipinos but also
Filipino-controlled entities or entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his
amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino
enterprise is also qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the
Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called
Filipino First policy.That means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony. [42]
The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo[43] -
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better
known as the FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x
xx
The term qualified Filipinos simply means that preference shall be given to those citizens who can make a
viable contribution to the common good, because of credible competence and efficiency. It certainly does
NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are
incompetent or inefficient, since such an indiscriminate preference would be counterproductive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made between a
qualified foreigner and a qualified Filipino, the latter shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with
its own guidelines so that the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant equity ownership in another hotel
company, or it has an overall management and marketing proficiency to successfully operate the Manila
Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing.The attempt to
violate a clear constitutional provision - by the government itself - is only too distressing. To adopt such a
line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the
provisions of the Constitution which evidently need implementing legislation have juridical life of their own
and can be the source of a judicial remedy.We cannot simply afford the government a defense that arises
out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt -
The executive department has a constitutional duty to implement laws, including the Constitution, even
before Congress acts - provided that there are discoverable legal standards for executive action. When
the executive acts, it must be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court,
for an interpretation every time the executive is confronted by a constitutional command. That is not how
constitutional government operates.[45]
Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at
best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior
approval of the State acting through respondent Committee on Privatization. As correctly pointed out by
Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC
a state action. In constitutional jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it engages in is a public
function; (2) when the government is so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the government has approved or authorized the
action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes
under the second and third categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the
constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the government
as elements of the State. After all, government is composed of three (3) divisions of power - legislative,
executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly
directed to the three (3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are
they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents
are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to
be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land.Those which violate the Constitution lose
their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per
share.[47] Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a strongerreason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the
bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the
Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous
skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any
person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding
is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be
awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid
tendered by the foreign entity. In the case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid
offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS
to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that government be treated as any other ordinary
market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to
the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather
remedy the indiscretion while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of
MHC and to execute the necessary agreements and documents to effect the sale in accordance not only
with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent
GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the
latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained
by the Constitution. The position of the Court on this matter could have not been more appropriately
articulated by Chief Justice Narvasa -
As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the
legislature or the executive about the wisdom and feasibility of legislation economic in nature, the
Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress
and development x x x x in connection with a temporary injunction issued by the Courts First Division
against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were
published in a major daily to the effect that that injunction again demonstrates that the Philippine legal
system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to intervene in contracts
of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden
duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented
with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no
matter how buffeted by winds of unfair and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-material
values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national
pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court
will always defer to the Constitution in the proper governance of a free society; after all, there is nothing
so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is
involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can
have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic
concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the
demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property
in a commercial district. We are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and
continues to play a significant role as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a country. [51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nations soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-
Filipino? How much of national pride will vanish if the nations cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is
safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple
meaning of the Filipino First Policyprovision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will
continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to
effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur.
Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
Padilla, J., see concurring opinion.
Vitug, J., see separate concurring opinion
Mendoza, J., see concurring opinion
Torres, J., with separate opinion
Puno, J., see dissent.
Panganiban J., with separate dissenting opinion.
SUPREME COURT
Manila
EN BANC
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor,
represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES
FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA,
MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ,
minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN,
MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA,
minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and
REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by
their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented
by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a
cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber
license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this
balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of
salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum —
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers
and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are
so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per
hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph
6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled
to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious
damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights
of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare,
barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of
the State —
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient
use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article
XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and
violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In
the said order, not only was the defendant's claim — that the complaint states no cause of action against
him and that it raises a political question — sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3
of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject
matter of the complaint is of common and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all concerned interests. Hence, all
the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell
short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and
protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color
and involving a matter of public policy, may not be taken cognizance of by this Court without doing
violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come — generations which stand to
inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution — air, water
and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the
correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment
of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment
and Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of the different segments of
the population to the development and the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental cost implications relative to
their utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people,
the full exploration and development as well as the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-
shore areas and other natural resources, consistent with the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the environment and the objective
of making the exploration, development and utilization of such natural resources equitably
accessible to the different segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony with
each other, (b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity
and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the
said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and
its essential elements are legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity
of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a
valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court
laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon
a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to
be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation
or determination by the executive or legislative branches of Government is not squarely put in issue.
What is principally involved is the enforcement of a right vis-a-vis policies already formulated and
expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no
longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review. The second paragraph of section
1, Article VIII of the Constitution states that:
branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very
elastic phrase that can expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive.
The reason is that, even if we were to assume that the issue presented before us was political in
nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred
upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction,
grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the Government to strictly respect the said
licenses according to their terms and conditions regardless of changes in policy and the demands of
public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify,
replace or rescind any contract, concession, permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract
within the purview of the due process clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or municipal, granting it and the person to whom it
is granted; neither is it property or a property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create
irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the
State regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the
State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when national interests so require. Thus,
they are not deemed contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same
is understood to be subject to reasonable legislative regulation aimed at the promotion of public
health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the State, in the interest of
public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of contracts are normally
matters of private and not of public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his property to the detriment of his fellows,
or exercise his freedom of contract to work them harm. Equally fundamental with the private right
is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed
in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of
right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what
the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved — membership in this "class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
the Court should be understood as simply saying that such a more specific legal right or rights may well
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
Section 1. . . .
branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and economic policy making. At least in respect
of the vast area of environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no specific, operable
norms and standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and promulgate
those norms and standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the
proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that they may seek to dispute the existence of the
specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what
the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved — membership in this "class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water

(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
the Court should be understood as simply saying that such a more specific legal right or rights may well
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
Section 1. . . .
branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to
health" are combined with remedial standards as broad ranging as "a grave abuse of discretion
amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts
into the uncharted ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special technical competence
and experience and professional qualification. Where no specific, operable norms and standards are
shown to exist, then the policy making departments — the legislative and executive departments — must
be given a real and effective opportunity to fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the
proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that they may seek to dispute the existence of the
specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.

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Republic of the Philippines

G.R. No. 78780 July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,

Under the 1973 Constitution, the same provision read:

xxx xxx xxx

No salary or any form of emolument of any public officer or employee, including

WHEREFORE, the instant petition for Prohibition is hereby dismissed.

1) Postal Delivery Truck

Evidence for the Prosecution

a. Na ikaw ay may karapatang tumahimik;

WAKAS NG SALAYSAY: . . . . . /ac

MGA SAKSI SA LAGDA:

Evidence for the Defense

The Respondent Courts Decision

The amended petition raises the following:

The Courts Ruling

Preliminary Issue: Rule 45 or Rule 65?

First Issue: Uncounselled Waiver

x x x matapos akong mapagpaliwanagan ng mga imbestigador ng Special Operations Group, PC/INP

The Second Issue: Confession Extracted Through Torture?

The Third Issue: Illegal Arrest?

The Fourth Issue: Sufficiency of the Prosecutions Evidence

Final Question: Brigandage or Robbery?

personal property (treasury warrants, checks, mail, van, tools, etc.)

belonging to another were

unlawfully taken by the accused

with intent to gain (animo lucrandi)

with intimidation against three persons (Art. 293)

by attacking a moving motor vehicle

All other parts of the disposition are hereby AFFIRMED.

Republic of the Philippines

G.R. No. 83896 February 22, 1991

G.R. No. 83815 February 22, 1991

G.R. No. 127882 January 27, 2004

LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F'LONG MIGUEL M.

They pray that the Court issue an order:

REQUISITES FOR JUDICIAL REVIEW

(1) The existence of an actual and appropriate case;

(4) The constitutional question is the lis mota of the case. 58

As earlier stated, petitioners meet this requirement.

The WMCP FTAA provides:

14.3 Future Legislation

PROPRIETY OF PROHIBITION AND MANDAMUS

Section 2, Article XII reads in full:

THE SPANISH REGIME AND THE REGALIAN DOCTRINE

THE AMERICAN OCCUPATION AND THE CONCESSION REGIME

THE 1935 CONSTITUTION AND THE NATIONALIZATION OF NATURAL RESOURCES

THE PETROLEUM ACT OF 1949 AND THE CONCESSION SYSTEM

Other liabilities of the system have also been noted:

Eventually, the concession system failed for reasons explained by Dimagiba:

THE 1987 CONSTITUTION AND TECHNICAL OR FINANCIAL ASSISTANCE AGREEMENTS

A third option is found in the third paragraph of the same section:

Although Section 2 sanctions the participation of foreign-owned corporations in the exploration,

The State may directly undertake such activities.

THE EFFECTIVITY OF EXECUTIVE ORDER NO. 279

Nevertheless, petitioners' contentions have no merit.

THE CONSTITUTIONALITY OF THE WMCP FTAA

SR. TAN. So those are the safeguards[?]

SR. TAN. Thank you, Madam President.230 [Emphasis supplied.]

MR. GARCIA. Thank you.

Thank you, and I vote yes.233 [Emphasis supplied.]

MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.

This Court is likewise not persuaded.

So we are still limiting it only to Filipino citizens.