Академический Документы
Профессиональный Документы
Культура Документы
127325 March 19, 1997 newspapers of general and local Upon the filing of the Delfin Petition, which was forthwith
circulation; given the number UND 96-037 (INITIATIVE), the COMELEC,
through its Chairman, issued an Order 11 (a) directing Delfin
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA,
"to cause the publication of the petition, together with the
and MARIA ISABEL ONGPIN, petitioners, 3. Instructing Municipal Election
attached Petition for Initiative on the 1987 Constitution
vs. Registrars in all Regions of the
(including the proposal, proposed constitutional amendment,
COMMISSION ON ELECTIONS, JESUS DELFIN, Philippines, to assist Petitioners and
and the signature form), and the notice of hearing in three (3)
ALBERTO PEDROSA & CARMEN PEDROSA, in their volunteers, in establishing signing
daily newspapers of general circulation at his own expense"
capacities as founding members of the People's stations at the time and on the dates
not later than 9 December 1996; and (b) setting the case for
Initiative for Reforms, Modernization and Action designated for the purpose.
hearing on 12 December 1996 at 10:00 a.m.
(PIRMA), respondents.
Delfin alleged in his petition that he is a founding member of
At the hearing of the Delfin Petition on 12 December 1996,
SENATOR RAUL S. ROCO, DEMOKRASYA- the Movement for People's Initiative,6 a group of citizens
the following appeared: Delfin and Atty. Pete Q. Quadra;
IPAGTANGGOL ANG KONSTITUSYON (DIK), desirous to avail of the system intended to institutionalize
representatives of the People's Initiative for Reforms,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD people power; that he and the members of the Movement
Modernization and Action (PIRMA); intervenor-oppositor
INTEGRITY AND NATIONALISM, INC. (MABINI), and other volunteers intend to exercise the power to directly
Senator Raul S. Roco, together with his two other lawyers,
INTEGRATED BAR OF THE PHILIPPINES (IBP), and propose amendments to the Constitution granted under
and representatives of, or counsel for, the Integrated Bar of
LABAN NG DEMOKRATIKONG PILIPINO Section 2, Article XVII of the Constitution; that the exercise of
the Philippines (IBP), Demokrasya-Ipagtanggol ang
(LABAN), petitioners-intervenors. that power shall be conducted in proceedings under the
Konstitusyon (DIK), Public Interest Law Center, and Laban
control and supervision of the COMELEC; that, as required
ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on
in COMELEC Resolution No. 2300, signature stations shall
that same day, filed a Motion to Dismiss the Delfin Petition
be established all over the country, with the assistance of
DAVIDE, JR., J.: on the ground that it is not the initiatory petition properly
municipal election registrars, who shall verify the signatures
cognizable by the COMELEC.
affixed by individual signatories; that before the Movement
The heart of this controversy brought to us by way of a and other volunteers can gather signatures, it is necessary
petition for prohibition under Rule 65 of the Rules of Court is that the time and dates to be designated for the purpose be After hearing their arguments, the COMELEC directed Delfin
the right of the people to directly propose amendments to the first fixed in an order to be issued by the COMELEC; and and the oppositors to file their "memoranda and/or
Constitution through the system of initiative under Section 2 that to adequately inform the people of the electoral process oppositions/memoranda" within five days. 13
of Article XVII of the 1987 Constitution. Undoubtedly, this involved, it is likewise necessary that the said order, as well
demands special attention, as this system of initiative was as the Petition on which the signatures shall be affixed, be
On 18 December 1996, the petitioners herein — Senator
unknown to the people of this country, except perhaps to a published in newspapers of general and local circulation,
Miriam Defensor Santiago, Alexander Padilla, and Maria
few scholars, before the drafting of the 1987 Constitution. under the control and supervision of the COMELEC.
Isabel Ongpin — filed this special civil action for prohibition
The 1986 Constitutional Commission itself, through the
raising the following arguments:
original proponent1 and the main sponsor2 of the proposed
The Delfin Petition further alleged that the provisions sought
Article on Amendments or Revision of the Constitution,
to be amended are Sections 4 and 7 of Article VI,7Section 4
characterized this system as "innovative".3 Indeed it is, for (1) The constitutional provision on
of Article VII,8 and Section 8 of Article X9 of the Constitution.
both under the 1935 and 1973 Constitutions, only two people's initiative to amend the
Attached to the petition is a copy of a "Petition for Initiative
methods of proposing amendments to, or revision of, the Constitution can only be implemented by
on the 1987 Constitution" 10 embodying the proposed
Constitution were recognized, viz., (1) by Congress upon a law to be passed by Congress. No such
amendments which consist in the deletion from the
vote of three-fourths of all its members and (2) by a law has been passed; in fact, Senate Bill
aforecited sections of the provisions concerning term limits,
constitutional convention.4 For this and the other reasons No. 1290 entitled An Act Prescribing and
and with the following proposition:
hereafter discussed, we resolved to give due course to this Regulating Constitution Amendments by
petition. People's Initiative, which petitioner
DO YOU APPROVE OF LIFTING THE Senator Santiago filed on 24 November
TERM LIMITS OF ALL ELECTIVE 1995, is still pending before the Senate
On 6 December 1996, private respondent Atty. Jesus S.
GOVERNMENT OFFICIALS, Committee on Constitutional
Delfin filed with public respondent Commission on Elections
AMENDING FOR THE PURPOSE Amendments.
(hereafter, COMELEC) a "Petition to Amend the Constitution,
SECTIONS 4 AND 7 OF ARTICLE VI,
to Lift Term Limits of Elective Officials, by People's Initiative"
SECTION 4 OF ARTICLE VII, AND
(hereafter, Delfin Petition)5 wherein Delfin asked the (2) It is true that R.A. No. 6735 provides
SECTION 8 OF ARTICLE X OF THE
COMELEC for an order for three systems of initiative, namely,
1987 PHILIPPINE CONSTITUTION?
initiative on the Constitution, on statutes,
and on local legislation. However, it
1. Fixing the time and dates for
According to Delfin, the said Petition for Initiative will first be failed to provide any subtitle on initiative
signature gathering all over the country;
submitted to the people, and after it is signed by at least on the Constitution, unlike in the other
twelve per cent of the total number of registered voters in the modes of initiative, which are specifically
2. Causing the necessary publications of country it will be formally filed with the COMELEC. provided for in Subtitle II and Subtitle III.
said Order and the attached "Petition for This deliberate omission indicates that
Initiative on the 1987 Constitution, in the matter of people's initiative to amend
the Constitution was left to some future issues raised demands that this petition for prohibition be UPHELD BY THE HONORABLE
law. Former Senator Arturo Tolentino settled promptly and definitely, brushing aside technicalities COURT IN ITS RECENT SEPTEMBER
stressed this deficiency in the law in his of procedure and calling for the admission of a taxpayer's 26, 1996 DECISION IN THE CASE
privilege speech delivered before the and legislator's suit. 14 Besides, there is no other plain, OF SUBIC BAY METROPOLITAN
Senate in 1994: "There is not a single speedy, and adequate remedy in the ordinary course of law. AUTHORITY VS. COMELEC, ET AL.
word in that law which can be G.R. NO. 125416;
considered as implementing [the
On 19 December 1996, this Court (a) required the
provision on constitutional initiative].
respondents to comment on the petition within a non- 4. REP. ACT NO. 6735 APPROVED ON
Such implementing provisions have
extendible period of ten days from notice; and (b) issued a AUGUST 4, 1989 IS THE ENABLING
been obviously left to a separate law.
temporary restraining order, effective immediately and LAW IMPLEMENTING THE POWER
continuing until further orders, enjoining public respondent OF PEOPLE INITIATIVE TO PROPOSE
(3) Republic Act No. 6735 provides for COMELEC from proceeding with the Delfin Petition, and AMENDMENTS TO THE
the effectivity of the law after publication private respondents Alberto and Carmen Pedrosa from CONSTITUTION. SENATOR
in print media. This indicates that the Act conducting a signature drive for people's initiative to amend DEFENSOR-SANTIAGO'S SENATE
covers only laws and not constitutional the Constitution. BILL NO. 1290 IS A DUPLICATION OF
amendments because the latter take WHAT ARE ALREADY PROVIDED
effect only upon ratification and not after FOR IN REP. ACT NO. 6735;
On 2 January 1997, private respondents, through Atty
publication.
Quadra, filed their Comment 15 on the petition. They argue
therein that: 5. COMELEC RESOLUTION NO. 2300
(4) COMELEC Resolution No. 2300, PROMULGATED ON JANUARY 16,
adopted on 16 January 1991 to govern 1991 PURSUANT TO REP. ACT 6735
1. IT IS NOT TRUE THAT "IT WOULD
"the conduct of initiative on the WAS UPHELD BY THE HONORABLE
ENTAIL EXPENSES TO THE
Constitution and initiative and COURT IN THE RECENT SEPTEMBER
NATIONAL TREASURY FOR
referendum on national and local laws, 26, 1996 DECISION IN THE CASE
GENERAL REGISTRATION OF
is ultra vires insofar as initiative on OF SUBIC BAY METROPOLITAN
VOTERS AMOUNTING TO AT LEAST
amendments to the Constitution is AUTHORITY VS. COMELEC, ET AL.
PESOS: ONE HUNDRED EIGHTY
concerned, since the COMELEC has no G.R. NO. 125416 WHERE THE
MILLION (P180,000,000.00)" IF THE
power to provide rules and regulations HONORABLE COURT SAID: "THE
"COMELEC GRANTS THE PETITION
for the exercise of the right of initiative to COMMISSION ON ELECTIONS CAN
FILED BY RESPONDENT DELFIN
amend the Constitution. Only Congress DO NO LESS BY SEASONABLY AND
BEFORE THE COMELEC.
is authorized by the Constitution to pass JUDICIOUSLY PROMULGATING
the implementing law. GUIDELINES AND RULES FOR BOTH
2. NOT A SINGLE CENTAVO WOULD NATIONAL AND LOCAL USE, IN
BE SPENT BY THE NATIONAL IMPLEMENTING OF THESE LAWS."
(5) The people's initiative is limited
GOVERNMENT IF THE COMELEC
to amendments to the Constitution, not
GRANTS THE PETITION OF
to revision thereof. Extending or lifting of 6. EVEN SENATOR DEFENSOR-
RESPONDENT DELFIN. ALL
term limits constitutes a revision and is, SANTIAGO'S SENATE BILL NO. 1290
EXPENSES IN THE SIGNATURE
therefore, outside the power of the CONTAINS A PROVISION
GATHERING ARE ALL FOR THE
people's initiative. DELEGATING TO THE COMELEC THE
ACCOUNT OF RESPONDENT DELFIN
POWER TO "PROMULGATE SUCH
AND HIS VOLUNTEERS PER THEIR
RULES AND REGULATIONS AS MAY
(6) Finally, Congress has not yet PROGRAM OF ACTIVITIES AND
BE NECESSARY TO CARRY OUT THE
appropriated funds for people's initiative; EXPENDITURES SUBMITTED TO THE
PURPOSES OF THIS ACT." (SEC. 12,
neither the COMELEC nor any other COMELEC. THE ESTIMATED COST
S.B. NO. 1290, ENCLOSED AS ANNEX
government department, agency, or OF THE DAILY PER DIEM OF THE
E, PETITION);
office has realigned funds for the SUPERVISING SCHOOL TEACHERS
purpose. IN THE SIGNATURE GATHERING TO
BE DEPOSITED and TO BE PAID BY 7. THE LIFTING OF THE LIMITATION
DELFIN AND HIS VOLUNTEERS IS ON THE TERM OF OFFICE OF
To justify their recourse to us via the special civil action for
P2,571,200.00; ELECTIVE OFFICIALS PROVIDED
prohibition, the petitioners allege that in the event the
UNDER THE 1987 CONSTITUTION IS
COMELEC grants the Delfin Petition, the people's initiative
NOT A "REVISION" OF THE
spearheaded by PIRMA would entail expenses to the 3. THE PENDING PETITION BEFORE
CONSTITUTION. IT IS ONLY AN
national treasury for general re-registration of voters THE COMELEC IS ONLY ON THE
AMENDMENT. "AMENDMENT
amounting to at least P180 million, not to mention the SIGNATURE GATHERING WHICH BY
ENVISAGES AN ALTERATION OF
millions of additional pesos in expenses which would be LAW COMELEC IS DUTY BOUND "TO
ONE OR A FEW SPECIFIC
incurred in the conduct of the initiative itself. Hence, the SUPERVISE CLOSELY" PURSUANT
PROVISIONS OF THE
transcendental importance to the public and the nation of the TO ITS "INITIATORY JURISDICTION"
CONSTITUTION. REVISION term limits. It does not seek to of the COMELEC to implement the
CONTEMPLATES A RE-EXAMINATION reexamine or overhaul the entire provisions of R.A. No. 6735 was in fact
OF THE ENTIRE DOCUMENT TO document. upheld by this Court in Subic Bay
DETERMINE HOW AND TO WHAT Metropolitan Authority vs. COMELEC.
EXTENT IT SHOULD BE ALTERED."
As to the public expenditures for registration of voters, Delfin
(PP. 412-413, 2ND. ED. 1992, 1097
considers petitioners' estimate of P180 million as unreliable, On 14 January 1997, this Court (a) confirmed nunc pro
PHIL. CONSTITUTION, BY JOAQUIN
for only the COMELEC can give the exact figure. Besides, if tunc the temporary restraining order; (b) noted the
G. BERNAS, S.J.).
there will be a plebiscite it will be simultaneous with the 1997 aforementioned Comments and the Motion to Lift Temporary
Barangay Elections. In any event, fund requirements Restraining Order filed by private respondents through Atty.
Also on 2 January 1997, private respondent Delfin filed in his for initiative will be a priority government expense because it Quadra, as well as the latter's Manifestation stating that he is
own behalf a Comment 16 which starts off with an assertion will be for the exercise of the sovereign power of the people. the counsel for private respondents Alberto and Carmen
that the instant petition is a "knee-jerk reaction to a draft Pedrosa only and the Comment he filed was for the
'Petition for Initiative on the 1987 Constitution'. . . which is Pedrosas; and (c) granted the Motion for Intervention filed on
In the Comment 17 for the public respondent COMELEC, filed
not formally filed yet." What he filed on 6 December 1996 6 January 1997 by Senator Raul Roco and allowed him to
also on 2 January 1997, the Office of the Solicitor General
was an "Initiatory Pleading" or "Initiatory Petition," which was file his Petition in Intervention not later than 20 January
contends that:
legally necessary to start the signature campaign to amend 1997; and (d) set the case for hearing on 23 January 1997 at
the Constitution or to put the movement to gather signatures 9:30 a.m.
under COMELEC power and function. On the substantive (1) R.A. No. 6735 deals with, inter alia,
allegations of the petitioners, Delfin maintains as follows: people's initiative to amend the
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Constitution. Its Section 2 on Statement
Konstitusyon (DIK) and the Movement of Attorneys for
of Policy explicitly affirms, recognizes,
(1) Contrary to the claim of the Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
and guarantees that power; and its
petitioners, there is a law, R.A. No. Motion for Intervention. Attached to the motion was their
Section 3, which enumerates the three
6735, which governs the conduct Petition in Intervention, which was later replaced by an
systems of initiative, includes initiative
of initiative to amend the Constitution. Amended Petition in Intervention wherein they contend that:
on the Constitution and defines the
The absence therein of a subtitle for
same as the power to propose
such initiative is not fatal, since subtitles
amendments to the Constitution. (1) The Delfin proposal does not involve
are not requirements for the validity or
Likewise, its Section 5 repeatedly a mere amendment to, but a revision of,
sufficiency of laws.
mentions initiative on the Constitution. the Constitution because, in the words
of Fr. Joaquin Bernas, S.J., 18 it would
(2) Section 9(b) of R.A. No. 6735 involve a change from a political
(2) A separate subtitle on initiative on
specifically provides that the proposition philosophy that rejects unlimited tenure
the Constitution is not necessary in R.A.
in an initiative to amend the Constitution to one that accepts unlimited tenure;
No. 6735 because, being national in
approved by the majority of the votes and although the change might appear
scope, that system of initiative is
cast in the plebiscite shall become to be an isolated one, it can affect other
deemed included in the subtitle on
effective as of the day of the plebiscite. provisions, such as, on synchronization
National Initiative and Referendum; and
of elections and on the State policy of
Senator Tolentino simply overlooked
guaranteeing equal access to
(3) The claim that COMELEC Resolution pertinent provisions of the law when he
opportunities for public service and
No. 2300 is ultra vires is contradicted by claimed that nothing therein was
prohibiting political
(a) Section 2, Article IX-C of the provided for initiative on the
dynasties. 19 A revision cannot be done
Constitution, which grants the Constitution.
by initiative which, by express provision
COMELEC the power to enforce and
of Section 2 of Article XVII of the
administer all laws and regulations
(3) Senate Bill No. 1290 is neither a Constitution, is limited to amendments.
relative to the conduct of an election,
competent nor a material proof that R.A.
plebiscite, initiative, referendum, and
No. 6735 does not deal with initiative on
recall; and (b) Section 20 of R.A. 6735, (2) The prohibition against reelection of
the Constitution.
which empowers the COMELEC to the President and the limits provided for
promulgate such rules and regulations all other national and local elective
as may be necessary to carry out the (4) Extension of term limits of elected officials are based on the philosophy of
purposes of the Act. officials constitutes a mere amendment governance, "to open up the political
to the Constitution, not a revision arena to as many as there are Filipinos
thereof. qualified to handle the demands of
(4) The proposed initiative does not
leadership, to break the concentration of
involve a revision of, but
political and economic powers in the
mere amendment to, the Constitution (5) COMELEC Resolution No. 2300 was hands of a few, and to promote effective
because it seeks to alter only a few validly issued under Section 20 of R.A.
proper empowerment for participation in
specific provisions of the Constitution, or No. 6735 and under the Omnibus policy and decision-making for the
more specifically, only those which lay Election Code. The rule-making power
common good"; hence, to remove the Senate Bill No. 17 and House Bill No. 21505; he co-authored Petition in Intervention within a nonextendible period of three
term limits is to negate and nullify the the House Bill and even delivered a sponsorship speech days from notice, and the respondents to comment thereon
noble vision of the 1987 Constitution. thereon. He likewise submits that the COMELEC was within a nonextendible period of five days from receipt of the
empowered under Section 20 of that law to promulgate said Petition in Intervention.
COMELEC Resolution No. 2300. Nevertheless, he contends
(3) The Delfin proposal runs counter to
that the respondent Commission is without jurisdiction to
the purpose of initiative, particularly in a At the hearing of the case on 23 January 1997, the parties
take cognizance of the Delfin Petition and to order its
conflict-of-interest situation. Initiative is argued on the following pivotal issues, which the Court
publication because the said petition is not the initiatory
intended as a fallback position that may formulated in light of the allegations and arguments raised in
pleading contemplated under the Constitution, Republic Act
be availed of by the people only if they the pleadings so far filed:
No. 6735, and COMELEC Resolution No. 2300. What vests
are dissatisfied with the performance of
jurisdiction upon the COMELEC in an initiative on the
their elective officials, but not as a
Constitution is the filing of a petition for initiative which 1. Whether R.A. No. 6735, entitled An
premium for good performance. 20
is signed by the required number of registered voters. He Act Providing for a System of Initiative
also submits that the proponents of a constitutional and Referendum and Appropriating
(4) R.A. No. 6735 is deficient and amendment cannot avail of the authority and resources of Funds Therefor, was intended to include
inadequate in itself to be called the the COMELEC to assist them is securing the required or cover initiative on amendments to the
enabling law that implements the number of signatures, as the COMELEC's role in an initiative Constitution; and if so, whether the Act,
people's initiative on amendments to the on the Constitution is limited to the determination of the as worded, adequately covers
Constitution. It fails to state (a) the sufficiency of the initiative petition and the call and such initiative.
proper parties who may file the petition, supervision of a plebiscite, if warranted.
(b) the appropriate agency before whom
2. Whether that portion of COMELEC
the petition is to be filed, (c) the contents
On 20 January 1997, LABAN filed a Motion for Leave to Resolution No. 2300 (In re: Rules and
of the petition, (d) the publication of the
Intervene. Regulations Governing the Conduct of
same, (e) the ways and means of
Initiative on the Constitution, and
gathering the signatures of the voters
Initiative and Referendum on National
nationwide and 3% per legislative The following day, the IBP filed a Motion for Intervention to
and Local Laws) regarding the conduct
district, (f) the proper parties who may which it attached a Petition in Intervention raising the
of initiative on amendments to the
oppose or question the veracity of the following arguments:
Constitution is valid, considering the
signatures, (g) the role of the COMELEC
absence in the law of specific provisions
in the verification of the signatures and
(1) Congress has failed to enact an on the conduct of such initiative.
the sufficiency of the petition, (h) the
enabling law mandated under Section 2,
appeal from any decision of the
Article XVII of the 1987 Constitution.
COMELEC, (I) the holding of a 3. Whether the lifting of term limits of
plebiscite, and (g) the appropriation of elective national and local officials, as
funds for such people's initiative. (2) COMELEC Resolution No. 2300 proposed in the draft "Petition for
Accordingly, there being no enabling cannot substitute for the required Initiative on the 1987 Constitution,"
law, the COMELEC has no jurisdiction implementing law on the initiative to would constitute a revision of, or an
to hear Delfin's petition. amend the Constitution. amendment to, the Constitution.
(5) The deficiency of R.A. No. 6735 (3) The Petition for Initiative suffers from 4. Whether the COMELEC can take
cannot be rectified or remedied by a fatal defect in that it does not have the cognizance of, or has jurisdiction over, a
COMELEC Resolution No. 2300, since required number of signatures. petition solely intended to obtain an
the COMELEC is without authority to order (a) fixing the time and dates for
legislate the procedure for a signature gathering; (b) instructing
people's initiative under Section 2 of (4) The petition seeks, in effect a
municipal election officers to assist
Article XVII of the Constitution. That revision of the Constitution, which can
Delfin's movement and volunteers in
be proposed only by Congress or a
function exclusively pertains to establishing signature stations; and (c)
Congress. Section 20 of R.A. No. 6735 constitutional convention. 22
directing or causing the publication
does not constitute a legal basis for the of, inter alia, the unsigned proposed
Resolution, as the former does not set a On 21 January 1997, we promulgated a Resolution (a) Petition for Initiative on the 1987
sufficient standard for a valid delegation granting the Motions for Intervention filed by the DIK and Constitution.
of power. MABINI and by the IBP, as well as the Motion for Leave to
Intervene filed by LABAN; (b) admitting the Amended
5. Whether it is proper for the Supreme
On 20 January 1997, Senator Raul Roco filed his Petition in Petition in Intervention of DIK and MABINI, and the Petitions
Court to take cognizance of the petition
Intervention. 21 He avers that R.A. No. 6735 is the enabling in Intervention of Senator Roco and of the IBP; (c) requiring
when there is a pending case before the
the respondents to file within a nonextendible period of five
law that implements the people's right to initiate COMELEC.
constitutional amendments. This law is a consolidation of days their Consolidated Comments on the aforesaid
Petitions in Intervention; and (d) requiring LABAN to file its
After hearing them on the issues, we required the parties to 29. The writ of prohibition is an from further proceedings in the action or
submit simultaneously their respective memoranda within extraordinary judicial writ issuing out of a matter specified therein.
twenty days and requested intervenor Senator Roco to court of superior jurisdiction and directed
submit copies of the deliberations on House Bill No. 21505. to an inferior court, for the purpose of
It must also be noted that intervenor Roco claims that the
preventing the inferior tribunal from
COMELEC has no jurisdiction over the Delfin Petition
usurping a jurisdiction with which it is not
On 27 January 1997, LABAN filed its Petition in Intervention because the said petition is not supported by the required
legally vested. (People v. Vera, supra.,
wherein it adopts the allegations and arguments in the main minimum number of signatures of registered voters. LABAN
p. 84). In this case the writ is an urgent
Petition. It further submits that the COMELEC should have also asserts that the COMELEC gravely abused its
necessity, in view of the highly divisive
dismissed the Delfin Petition for failure to state a sufficient discretion in refusing to dismiss the Delfin Petition, which
and adverse environmental
cause of action and that the Commission's failure or refusal does not contain the required number of signatures. In light
consequences on the body politic of the
to do so constituted grave abuse of discretion amounting to of these claims, the instant case may likewise be treated as
questioned Comelec order. The
lack of jurisdiction. a special civil action for certiorari under Section I of Rule 65
consequent climate of legal confusion
of the Rules of Court.
and political instability begs for judicial
On 28 January 1997, Senator Roco submitted copies of statesmanship.
portions of both the Journal and the Record of the House of In any event, as correctly pointed out by intervenor Roco in
Representatives relating to the deliberations of House Bill his Memorandum, this Court may brush aside technicalities
30. In the final analysis, when the
No. 21505, as well as the transcripts of stenographic notes of procedure in
system of constitutional law is
on the proceedings of the Bicameral Conference Committee, cases of transcendental importance. As we stated
threatened by the political ambitions of 28
Committee on Suffrage and Electoral Reforms, of 6 June in Kilosbayan, Inc. v. Guingona, Jr.
man, only the Supreme Court
1989 on House Bill No. 21505 and Senate Bill No. 17.
can save a nation in peril and uphold the
paramount majesty of the A party's standing before this Court is a
Private respondents Alberto and Carmen Pedrosa filed their Constitution. 25 procedural technicality which it may, in
Consolidated Comments on the Petitions in Intervention of the exercise of its discretion, set aside in
Senator Roco, DIK and MABINI, and IBP. 23 The parties view of the importance of issues raised.
It must be recalled that intervenor Roco filed with the
thereafter filed, in due time, their separate memoranda. 24 In the landmark Emergency Powers
COMELEC a motion to dismiss the Delfin Petition on the
Cases, this Court brushed aside this
ground that the COMELEC has no jurisdiction or authority to
technicality because the transcendental
As we stated in the beginning, we resolved to give due entertain the petition. 26 The COMELEC made no ruling
importance to the public of these cases
course to this special civil action. thereon evidently because after having heard the arguments
demands that they be settled promptly
of Delfin and the oppositors at the hearing on 12 December
and definitely, brushing aside, if we
1996, it required them to submit within five days their
For a more logical discussion of the formulated issues, we must, technicalities of procedure.
memoranda or oppositions/memoranda. 27 Earlier, or
shall first take up the fifth issue which appears to pose a specifically on 6 December 1996, it practically gave due
prejudicial procedural question.
course to the Delfin Petition by ordering Delfin to cause the II
publication of the petition, together with the attached Petition
I for Initiative, the signature form, and the notice of hearing;
R.A. NO. 6735 INTENDED TO INCLUDE THE
and by setting the case for hearing. The COMELEC's failure
to act on Roco's motion to dismiss and its insistence to hold SYSTEM OF INITIATIVE ON AMENDMENTS TO
THE INSTANT PETITION IS VIABLE DESPITE on to the petition rendered ripe and viable the instant petition THE CONSTITUTION, BUT IS,
THE PENDENCY IN THE COMELEC OF THE UNFORTUNATELY, INADEQUATE TO COVER
under Section 2 of Rule 65 of the Rules of Court, which
DELFIN PETITION. provides: THAT SYSTEM.
Except for the petitioners and intervenor Roco, the parties Section 2 of Article XVII of the Constitution provides:
Sec. 2. Petition for prohibition. — Where
paid no serious attention to the fifth issue, i.e., whether it is the proceedings of any tribunal,
proper for this Court to take cognizance of this special civil corporation, board, or person, whether Sec. 2. Amendments to this Constitution
action when there is a pending case before the COMELEC. exercising functions judicial or may likewise be directly proposed by the
The petitioners provide an affirmative answer. Thus: ministerial, are without or in excess of its people through initiative upon a petition
or his jurisdiction, or with grave abuse of of at least twelve per centum of the total
28. The Comelec has no jurisdiction to discretion, and there is no appeal or any number of registered voters, of which
take cognizance of the petition filed by other plain, speedy and adequate every legislative district must be
private respondent Delfin. This being so, remedy in the ordinary course of law, a represented by at least three per
it becomes imperative to stop the person aggrieved thereby may file a centum of the registered voters therein.
Comelec from proceeding any further, verified petition in the proper court No amendment under this section shall
and under the Rules of Court, Rule 65, alleging the facts with certainty and be authorized within five years following
Section 2, a petition for prohibition is the praying that judgment be rendered the ratification of this Constitution nor
proper remedy. commanding the defendant to desist oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the President. May we matter to the
exercise of this right. respectfully call legislature?
attention of the
Members of the
This provision is not self-executory. In his book, 29 Joaquin MR. SUAREZ. That
Commission that
Bernas, a member of the 1986 Constitutional Commission, is right, Madam
pursuant to the
stated: President.
mandate given to us
last night, we
Without implementing legislation Section submitted this FR. BERNAS. And
2 cannot operate. Thus, although this afternoon a do we also
mode of amending the Constitution is a complete understand,
mode of amendment which bypasses Committee Report therefore, that for as
congressional action, in the last analysis No. 7 which long as the
it still is dependent on congressional embodies the legislature does not
action. proposed provision pass the necessary
governing the implementing law
matter of initiative. on this, this will not
Bluntly stated, the right of the people to directly This is now covered operate?
propose amendments to the Constitution through by Section 2 of the
the system of initiative would remain entombed in
complete committee
the cold niche of the Constitution until Congress report. With the MR. SUAREZ. That
provides for its implementation. Stated otherwise, permission of the matter was also
while the Constitution has recognized or granted taken up during the
Members, may I
that right, the people cannot exercise it if quote Section 2: committee hearing,
Congress, for whatever reason, does not provide especially with
for its implementation. respect to the
The people may, after five years from budget
the date of the last plebiscite held, appropriations
This system of initiative was originally included in Section 1 directly propose amendments to this which would have to
of the draft Article on Amendment or Revision proposed by Constitution thru initiative upon petition be legislated so that
the Committee on Amendments and Transitory Provisions of of at least ten percent of the registered the plebiscite could
the 1986 Constitutional Commission in its Committee Report voters. be called. We
No. 7 (Proposed Resolution No. 332). 30 That section reads
deemed it best that
as follows:
this matter be left to
This completes the blanks appearing in
the legislature. The
the original Committee Report No. 7. 32
Sec. 1. Any amendment to, or revision of, this Constitution Gentleman is right.
may be proposed: In any event, as
The interpellations on Section 2 showed that the details for envisioned, no
carrying out Section 2 are left to the legislature. Thus: amendment through
(a) by the National Assembly upon a the power of
vote of three-fourths of all its members; initiative can be
or FR. BERNAS.
called until after five
Madam President,
years from the date
just two simple,
(b) by a constitutional convention; or of the ratification of
clarificatory
this Constitution.
questions.
Therefore, the first
(c) directly by the people themselves amendment that
thru initiative as provided for in First, on Section 1 could be proposed
Article___ Section ___of the through the
on the matter of
Constitution. 31 initiative upon exercise of this
petition of at least initiative power
After several interpellations, but before the period 10 percent, there would be after five
of amendments, the Committee submitted a new are no details in the years. It is
formulation of the concept of initiative which it provision on how to reasonably
denominated as Section 2; thus: carry this out. Do expected that within
we understand, that five-year
therefore, that we period, the National
MR. SUAREZ. are leaving this Assembly can come
Thank you, Madam up with the
appropriate rules MR. SUAREZ. That underscore the
governing the is absolutely primacy of
exercise of this correct, Madam constituent power
power. President. we have a separate
article in the
constitution that
FR. BERNAS. MS. AQUINO. I fully
would specifically
Since the matter concur with the
cover the process
is left to the underlying precept
and the modes of
legislature — the of the proposal in
amending the
details on how this terms of
Constitution?
is to be carried institutionalizing
out — is it possible popular participation
that, in effect, what in the drafting of the MR. SUAREZ. That
will be presented to Constitution or in is right, Madam
the people for the amendment President.
ratification is the thereof, but I would
work of the have a lot of
MS. AQUINO.
legislature rather difficulties in terms
Therefore, is the
than of the people? of accepting the
sponsor inclined, as
Does this provision draft of Section 2,
the provisions are
exclude that as written. Would
drafted now, to
possibility? the sponsor agree
again concede to
with me that in the
the legislature the
hierarchy of legal
MR. SUAREZ. No, process or the
mandate,
it does not exclude requirement of
constituent power
that possibility determining the
has primacy over all
because even the mechanics of
other legal
legislature itself as amending the
mandates?
a body could Constitution by
propose that people's initiative?
amendment, maybe MR. SUAREZ. The
individually or Commissioner is
MR. SUAREZ. The
collectively, if it fails right, Madam
matter of
to muster the three- President.
implementing this
fourths vote in order
could very well be
to constitute itself
MS. AQUINO. And placed in the hands
as a constituent
would the sponsor of the National
assembly and
agree with me that Assembly, not
submit that proposal
in the hierarchy of unless we can
to the people for
legal values, the incorporate into this
ratification through
Constitution is provision the
the process of an
source of all legal mechanics that
initiative.
mandates and that would adequately
therefore we require cover all the
xxx xxx xxx a great deal of conceivable
circumspection in situations. 33
the drafting and in
MS. AQUINO. Do I
the amendments of
understand from the It was made clear during the interpellations that the
the Constitution?
sponsor that the aforementioned Section 2 is limited to proposals to AMEND
intention in the — not to REVISE — the Constitution; thus:
proposal is to vest MR. SUAREZ. That
constituent power in proposition is
MR. SUAREZ. . . .
the people to nondebatable.
This proposal was
amend the
suggested on the
Constitution?
MS. AQUINO. Such theory that this
that in order to matter of initiative,
which came about amendment and Rama, Ople, de los
because of the should not expand Reyes and Romulo.
extraordinary into a revision which The modified
developments this contemplates a total amendment in
year, has to be overhaul of the substitution of the
separated from the Constitution. That proposed Section 2
traditional modes of was the sense that will now read as
amending the was conveyed by follows: "SECTION
Constitution as the Committee. 2. —
embodied in AMENDMENTS TO
Section 1. The THIS
MS. AQUINO. In
committee CONSTITUTION
other words, the
members felt MAY LIKEWISE BE
Committee was
that this system of DIRECTLY
attempting to
initiative should not PROPOSED BY
distinguish the
extend to the THE PEOPLE
coverage of modes
revision of the entire THROUGH
(a) and (b) in
Constitution, so we INITIATIVE UPON
Section 1 to include
removed it from the A PETITION OF AT
the process of
operation of Section LEAST TWELVE
revision; whereas
1 of the proposed PERCENT OF THE
the process of
Article on TOTAL NUMBER
initiation to amend,
Amendment or Of REGISTERED
34 which is given to the
Revision. VOTERS, OF
public, would only
WHICH EVERY
apply to
LEGISLATIVE
xxx xxx xxx amendments?
DISTRICT MUST
BE
MS. AQUINO. In MR. SUAREZ. That REPRESENTED
which case, I am is right. Those were BY AT LEAST
seriously bothered the terms THREE PERCENT
by providing this envisioned in the OF THE
process of initiative Committee. 35 REGISTERED
as a separate VOTERS
section in the Article THEREOF. NO
Amendments to the proposed Section 2 were thereafter AMENDMENT
on Amendment.
introduced by then Commissioner Hilario G. Davide, Jr.,
Would the sponsor UNDER THIS
which the Committee accepted. Thus: SECTION SHALL
be amenable to
accepting an BE AUTHORIZED
amendment in MR. DAVIDE. WITHIN FIVE
terms of realigning Thank you Madam YEARS
Section 2 as President. I propose FOLLOWING THE
another to substitute the RATIFICATION OF
subparagraph (c) of entire Section 2 with THIS
Section 1, instead the following: CONSTITUTION
of setting it up as NOR OFTENER
another separate THAN ONCE
section as if it were MR. DAVIDE. EVERY FIVE
a self-executing Madam President, I YEARS
have modified the THEREAFTER.
provision?
proposed
amendment after
MR. SUAREZ. We taking into account THE NATIONAL
would be amenable the modifications ASSEMBLY SHALL
except that, as we submitted by the BY LAW PROVIDE
clarified a while sponsor himself and FOR THE
ago, this process of the honorable IMPLEMENTATION
initiative is limited to Commissioners OF THE EXERCISE
the matter of Guingona, Monsod, OF THIS RIGHT.
MR. SUAREZ. anymore the Padilla when he
Madam President, percentage of the made the distinction
considering that the requirement. between the words
proposed "amendments" and
amendment is "revision"?
MR. ROMULO. But
reflective of the
the procedures,
sense contained in
including the MR. DAVIDE. No, it
Section 2 of our
determination of the does not, because
completed
proper form for "amendments" and
Committee Report
submission to the "revision" should be
No. 7, we accept
people, may be covered by Section
the proposed
subject to 1. So insofar as
amendment. 36
legislation. initiative is
concerned, it can
The interpellations which ensued on the proposed modified only relate to
MR. DAVIDE. As
amendment to Section 2 clearly showed that it was a "amendments" not
long as it will not
legislative act which must implement the exercise of the "revision." 38
destroy the
right. Thus:
substantive right to
initiate. In other Commissioner Davide further emphasized that the process
MR. ROMULO. words, none of the of proposing amendments through initiative must be more
Under procedures to be rigorous and difficult than the initiative on legislation. Thus:
Commissioner proposed by the
Davide's legislative body
MR. DAVIDE. A
amendment, is it must diminish or
distinction has to be
possible for the impair the right
made that under
legislature to set conceded here.
this proposal, what
forth certain
is involved is an
procedures to carry
MR. ROMULO. In amendment to the
out the initiative. . .?
that provision of the Constitution. To
Constitution can the amend a
MR. DAVIDE. It procedures which I Constitution would
can. have discussed be ordinarily require a
legislated? proposal by the
National Assembly
xxx xxx xxx
by a vote of three-
MR. DAVIDE.
fourths; and to call a
Yes. 37
MR. ROMULO. But constitutional
the Commissioner's convention would
amendment does Commissioner Davide also reaffirmed that his modified require a higher
not prevent the amendment strictly confines initiative to AMENDMENTS to number. Moreover,
legislature from — NOT REVISION of — the Constitution. Thus: just to submit the
asking another body issue of calling a
to set the constitutional
MR. DAVIDE. With convention, a
proposition in
pleasure, Madam majority of the
proper form.
President.
National Assembly
is required, the
MR. DAVIDE. The import being that
MR. MAAMBONG.
Commissioner is
My first question: the process of
correct. In other amendment must
Commissioner
words, the be made more
Davide's proposed
implementation of
amendment on line rigorous and difficult
this particular right than probably
1 refers to
would be subject to initiating an ordinary
"amendment." Does
legislation, provided
it not cover the word legislation or putting
the legislature an end to a law
"revision" as defined
cannot determine proposed by the
by Commissioner
National Assembly BY AT LEAST There is, of course, no other better way for Congress to
by way of a THREE PERCENT implement the exercise of the right than through the passage
referendum. I OF THE of a statute or legislative act. This is the essence or rationale
cannot agree to REGISTERED of the last minute amendment by the Constitutional
reducing the VOTERS Commission to substitute the last paragraph of Section 2 of
requirement THEREOF. NO Article XVII then reading:
approved by the AMENDMENT
Committee on the UNDER THIS
The Congress 45 shall by law provide for
Legislative because SECTION SHALL
the implementation of the exercise of
it would require BE AUTHORIZED
this right.
another voting by WITHIN FIVE
the Committee, and YEARS
the voting as FOLLOWING THE with
precisely based on RATIFICATION OF
a requirement of 10 THIS
percent. Perhaps, I CONSTITUTION The Congress shall provide for the
implementation of the exercise of this
might present such NOR OFTENER
a proposal, by way THAN ONCE right.
of an amendment, EVERY FIVE
when the YEARS This substitute amendment was an investiture on
Commission shall THEREAFTER. Congress of a power to provide for the rules
take up the Article implementing the exercise of the right. The "rules"
on the Legislative or means "the details on how [the right] is to be
THE NATIONAL
on the National carried out." 46
ASSEMBLY SHALL
Assembly on
BY LAW PROVIDE
plenary sessions. 39
FOR THE We agree that R.A. No. 6735 was, as its history reveals,
IMPLEMENTATION intended to cover initiative to propose amendments to the
The Davide modified amendments to Section 2 were OF THE EXERCISE Constitution. The Act is a consolidation of House Bill No.
subjected to amendments, and the final version, which the OF THIS RIGHT. 40 21505 and Senate Bill No. 17. The former was prepared by
Commission approved by a vote of 31 in favor and 3 against, the Committee on Suffrage and Electoral Reforms of the
reads as follows: House of Representatives on the basis of two House Bills
The entire proposed Article on Amendments or
Revisions was approved on second reading on 9 referred to it, viz., (a) House Bill No. 497, 47 which dealt with
MR. DAVIDE. July 1986. 41Thereafter, upon his motion for the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b)
Thank you Madam reconsideration, Commissioner Gascon was
President. Section allowed to introduce an amendment to Section 2 House Bill No. 988, 48 which dealt with the subject matter of
2, as amended, which, nevertheless, was withdrawn. In view House Bill No. 497, as well as with initiative and referendum
under Section 3 of Article X (Local Government) and
reads as follows: thereof, the Article was again approved on Second
"AMENDMENT TO and Third Readings on 1 August 1986. 42 initiative provided for in Section 2 of Article XVII of the
THIS Constitution. Senate Bill No. 17 49 solely dealt with initiative
and referendum concerning ordinances or resolutions of
CONSTITUTION
However, the Committee on Style recommended that the local government units. The Bicameral Conference
MAY LIKEWISE BE
approved Section 2 be amended by changing "percent" Committee consolidated Senate Bill No. 17 and House Bill
DIRECTLY
to "per centum" and "thereof" to "therein" and deleting the No. 21505 into a draft bill, which was subsequently approved
PROPOSED BY
THE PEOPLE
phrase "by law" in the second paragraph so that said on 8 June 1989 by the Senate 50 and by the House of
paragraph reads: The Congress 43 shall provide for the Representatives. 51 This approved bill is now R.A. No. 6735.
THROUGH
implementation of the exercise of this right. 44 This
INITIATIVE UPON
amendment was approved and is the text of the present
A PETITION OF AT But is R.A. No. 6735 a full compliance with the power and
second paragraph of Section 2.
LEAST TWELVE duty of Congress to "provide for the implementation of the
PERCENT OF THE exercise of the right?"
TOTAL NUMBER The conclusion then is inevitable that, indeed, the system of
OF REGISTERED initiative on the Constitution under Section 2 of Article XVII of
VOTERS, OF the Constitution is not self-executory. A careful scrutiny of the Act yields a negative answer.
WHICH EVERY
LEGISLATIVE First. Contrary to the assertion of public respondent
Has Congress "provided" for the implementation of the
DISTRICT MUST COMELEC, Section 2 of the Act does not suggest an
BE exercise of this right? Those who answer the question in the
initiative on amendments to the Constitution. The said
REPRESENTED affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735. section reads:
Sec. 2. Statement and Policy. — The c.2 the proposition; Sec. 3. Definition of terms —
power of the people under a system of
initiative and referendum to directly
c.3 the reason or reasons therefor; xxx xxx xxx
propose, enact, approve or reject, in
whole or in part, the Constitution, laws,
ordinances, or resolutions passed by c.4 that it is not one of the exceptions There are three (3) systems of initiative, namely:
any legislative body upon compliance provided therein;
with the requirements of this Act is
hereby affirmed, recognized and a.1 Initiative on the Constitution which
guaranteed. (Emphasis supplied). c.5 signatures of the petitioners or refers to a petition proposing
registered voters; and amendments to the Constitution;
The Ruling of the COMELEC The Court heard the parties and intervenors in oral The deliberations of the Constitutional Commission vividly
arguments on 26 September 2006. After receiving the explain the meaning of an amendment "directly proposed
parties' memoranda, the Court considered the case by the people through initiative upon a petition," thus:
On 31 August 2006, the COMELEC issued its Resolution
submitted for resolution.
denying due course to the Lambino Group's petition for lack
of an enabling law governing initiative petitions to amend the MR. RODRIGO: Let us look at the mechanics. Let
Constitution. The COMELEC invoked this Court's ruling The Issues us say some voters want to propose a
in Santiago v. Commission on Elections8 declaring RA 6735 constitutional amendment. Is the draft of the
inadequate to implement the initiative clause on proposals to proposed constitutional amendment ready to
The petitions raise the following issues:
amend the Constitution.9 be shown to the people when they are asked to
sign?
1. Whether the Lambino Group's initiative petition complies
In G.R. No. 174153, the Lambino Group prays for the
with Section 2, Article XVII of the Constitution on
issuance of the writs of certiorari and mandamus to set aside MR. SUAREZ: That can be reasonably
amendments to the Constitution through a people's initiative;
the COMELEC Resolution of 31 August 2006 and to compel assumed, Madam President.
the COMELEC to give due course to their initiative petition.
The Lambino Group contends that the COMELEC committed 2. Whether this Court should revisit its ruling
MR. RODRIGO: What does the sponsor
grave abuse of discretion in denying due course to their in Santiago declaring RA 6735 "incomplete, inadequate or
mean? The draft is ready and shown to them
petition since Santiago is not a binding precedent. wanting in essential terms and conditions" to implement the
before they sign. Now, who prepares the draft?
Alternatively, the Lambino Group claims that Santiago binds initiative clause on proposals to amend the Constitution; and
only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign MR. SUAREZ: The people themselves, Madam
3. Whether the COMELEC committed grave abuse of
people." President.
discretion in denying due course to the Lambino Group's
petition.
In G.R. No. 174299, petitioners ("Binay Group") pray that the MR. RODRIGO: No, because before they sign
Court require respondent COMELEC Commissioners to there is already a draft shown to them and they
The Ruling of the Court
show cause why they should not be cited in contempt for the are asked whether or not they want to propose this
COMELEC's verification of signatures and for "entertaining" constitutional amendment.
the Lambino Group's petition despite the permanent There is no merit to the petition.
injunction in Santiago. The Court treated the Binay Group's
petition as an opposition-in-intervention. MR. SUAREZ: As it is envisioned, any Filipino
The Lambino Group miserably failed to comply with the basic can prepare that proposal and pass it around
requirements of the Constitution for conducting a people's for signature.13 (Emphasis supplied)
In his Comment to the Lambino Group's petition, the Solicitor initiative. Thus, there is even no need to revisit Santiago, as
General joined causes with the petitioners, urging the Court the present petition warrants dismissal based alone on the
to grant the petition despite the Santiago ruling. The Clearly, the framers of the Constitution intended that the
Lambino Group's glaring failure to comply with the basic
"draft of the proposed constitutional amendment" should
Solicitor General proposed that the Court treat RA 6735 and requirements of the Constitution. For following the Court's
be "ready and shown" to the people "before" they sign such
its implementing rules "as temporary devises to implement ruling in Santiago, no grave abuse of discretion is
proposal. The framers plainly stated that "before they sign
the system of initiative." attributable to the Commision on Elections.
there is already a draft shown to them." The framers also
"envisioned" that the people should sign on the proposal signer having actually examined the petition, could arguments against their proposal. The proponents, or their
itself because the proponents must "prepare that proposal easily mislead the signer by, for example, omitting, supporters, often pay those who gather the signatures.
and pass it around for signature." downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the
Thus, there is no presumption that the proponents observed
signer's liking. This danger seems particularly
The essence of amendments "directly proposed by the the constitutional requirements in gathering the signatures.
acute when, in this case, the person giving the
people through initiative upon a petition" is that the The proponents bear the burden of proving that they
description is the drafter of the petition, who
entire proposal on its face is a petition by the people. complied with the constitutional requirements in gathering
obviously has a vested interest in seeing that it
This means two essential elements must be present. First, the signatures - that the petition contained, or
gets the requisite signatures to qualify for the
the people must author and thus sign the entire proposal. No incorporated by attachment, the full text of the proposed
ballot.17 (Boldfacing and underscoring supplied)
agent or representative can sign on their behalf. Second, as amendments.
an initiative upon a petition, the proposal must be embodied
in a petition. Likewise, in Kerr v. Bradbury,18 the Court of Appeals of
The Lambino Group did not attach to their present petition
Oregon explained:
with this Court a copy of the paper that the people signed as
These essential elements are present only if the full text of their initiative petition. The Lambino Group submitted to this
the proposed amendments is first shown to the people who The purposes of "full text" provisions that apply to Court a copy of a signature sheet20 after the oral arguments
express their assent by signing such complete proposal in a amendments by initiative commonly are described of 26 September 2006 when they filed their Memorandum on
petition. Thus, an amendment is "directly proposed by in similar terms. x x x (The purpose of the full 11 October 2006. The signature sheet with this Court during
the people through initiative upon a petition" only if the text requirement is to provide sufficient the oral arguments was the signature sheet attached21 to the
people sign on a petition that contains the full text of the information so that registered voters can opposition in intervention filed on 7 September 2006 by
proposed amendments. intelligently evaluate whether to sign the intervenor Atty. Pete Quirino-Quadra.
initiative petition."); x x x (publication of full text
of amended constitutional provision required
The full text of the proposed amendments may be either The signature sheet attached to Atty. Quadra's opposition
because it is "essential for the elector to have x x x
written on the face of the petition, or attached to it. If so and the signature sheet attached to the Lambino Group's
the section which is proposed to be added to or
attached, the petition must state the fact of such attachment. Memorandum are the same. We reproduce below the
subtracted from. If he is to vote intelligently, he
This is an assurance that every one of the several millions of signature sheet in full:
must have this knowledge. Otherwise in many
signatories to the petition had seen the full text of the
instances he would be required to vote in the
proposed amendments before signing. Otherwise, it is
dark.") (Emphasis supplied) Province: City/Municipality:
physically impossible, given the time constraint, to prove that
every one of the millions of signatories had seen the full text Legislative District: Barangay:
of the proposed amendments before signing. Moreover, "an initiative signer must be informed at the time
of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and
The framers of the Constitution directly borrowed 14 the
misleading" which renders the initiative void.19
concept of people's initiative from the United States where PROPOSITION: "DO YOU APPROVE OF THE
various State constitutions incorporate an initiative clause. In AMENDMENT OF ARTICLES VI AND VII OF THE 1987
almost all States15 which allow initiative petitions, the Section 2, Article XVII of the Constitution does not expressly CONSTITUTION, CHANGING THE FORM OF
unbending requirement is that the people must first see state that the petition must set forth the full text of the GOVERNMENT FROM THE PRESENT BICAMERAL-
the full text of the proposed amendments before they proposed amendments. However, the deliberations of the PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
sign to signify their assent, and that the people must framers of our Constitution clearly show that the framers SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE
sign on an initiative petition that contains the full text of intended to adopt the relevant American jurisprudence on GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN
the proposed amendments.16 people's initiative. In particular, the deliberations of the GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS
Constitutional Commission explicitly reveal that the framers TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
intended that the people must first see the full text of the FROM ONE SYSTEM TO ANOTHER?"
The rationale for this requirement has been repeatedly
proposed amendments before they sign, and that the
explained in several decisions of various courts. Thus,
people must sign on a petition containing such full text.
in Capezzuto v. State Ballot Commission, the Supreme I hereby APPROVE the proposed amendment to the 1987
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
Court of Massachusetts, affirmed by the First Circuit Court Constitution. My signature herein which shall form part of the
and Referendum Act that the Lambino Group invokes as
of Appeals, declared: petition for initiative to amend the Constitution signifies my
valid, requires that the people must sign the "petition x x x
as signatories." support for the filing thereof.
[A] signature requirement would be
meaningless if the person supplying the
The proponents of the initiative secure the signatures from Precinct Name Address
signature has not first seen what it is that he or
the people. The proponents secure the signatures in their Number
she is signing. Further, and more importantly,
private capacity and not as public officials. The proponents
loose interpretation of the subscription requirement Last Name, First Name,
are not disinterested parties who can impartially explain the
can pose a significant potential for fraud. A person M.I.
advantages and disadvantages of the proposed
permitted to describe orally the contents of an 1
amendments to the people. The proponents present
initiative petition to a potential signer, without the
favorably their proposal to the people and do not present the
2 registered voter, for and on behalf of the Union prejudice to other pragmatic means to pursue the
3 of Local Authorities of the Philippines, as same;
shown by ULAP Resolution No. 2006-02 hereto
4 attached, and as representative of the mass of
5 WHEREFORE, BE IT RESOLVED AS IT IS
signatories hereto. (Emphasis supplied)
HEREBY RESOLVED, THAT ALL THE
6 MEMBER-LEAGUES OF THE UNION OF LOCAL
7 The Lambino Group failed to attach a copy of ULAP AUTHORITIES OF THE PHILIPPINES (ULAP)
8 Resolution No. 2006-02 to the present petition. However, the SUPPORT THE PORPOSALS (SIC) OF THE
9 "Official Website of the Union of Local Authorities of the PEOPLE'S CONSULATATIVE (SIC)
Philippines"22 has posted the full text of Resolution No. 2006- COMMISSION ON CHARTER CHANGE
10
02, which provides: THROUGH PEOPLE'S INITIATIVE AND
_________________ _________________ __________________ REFERENDUM AS A MODE OF AMENDING
Barangay Official Witness Witness THE 1987 CONSTITUTION;
RESOLUTION NO. 2006-02
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
There is not a single word, phrase, or sentence of text of DONE, during the ULAP National Executive Board
RESOLUTION SUPPORTING THE PROPOSALS
the Lambino Group's proposed changes in the signature special meeting held on 14 January 2006 at the
OF THE PEOPLE'S CONSULTATIVE
sheet. Neither does the signature sheet state that the Century Park Hotel, Manila.23 (Underscoring
COMMISSION ON CHARTER CHANGE
text of the proposed changes is attached to it. Petitioner supplied)
THROUGH PEOPLE'S INITIATIVE AND
Atty. Raul Lambino admitted this during the oral arguments REFERENDUM AS A MODE OF AMENDING
before this Court on 26 September 2006. THE 1987 CONSTITUTION ULAP Resolution No. 2006-02 does not authorize petitioner
Aumentado to prepare the 25 August 2006 petition, or the 30
The signature sheet merely asks a question whether the August 2006 amended petition, filed with the COMELEC.
WHEREAS, there is a need for the Union of Local
people approve a shift from the Bicameral-Presidential to the ULAP Resolution No. 2006-02 "support(s) the porposals
Authorities of the Philippines (ULAP) to adopt a
Unicameral-Parliamentary system of government. The (sic) of the Consulatative (sic) Commission on Charter
common stand on the approach to support the
signature sheet does not show to the people the draft of Change through people's initiative and referendum as a
proposals of the People's Consultative
the proposed changes before they are asked to sign the mode of amending the 1987 Constitution." The proposals of
Commission on Charter Change;
signature sheet. Clearly, the signature sheet is not the the Consultative Commission24 are vastly different from the
"petition" that the framers of the Constitution envisioned proposed changes of the Lambino Group in the 25 August
when they formulated the initiative clause in Section 2, WHEREAS, ULAP maintains its unqualified 2006 petition or 30 August 2006 amended petition filed with
Article XVII of the Constitution. support to the agenda of Her Excellency President the COMELEC.
Gloria Macapagal-Arroyo for constitutional reforms
as embodied in the ULAP Joint Declaration for
Petitioner Atty. Lambino, however, explained that during the For example, the proposed revisions of the Consultative
Constitutional Reforms signed by the members of
signature-gathering from February to August 2006, the Commission affect all provisions of the existing
the ULAP and the majority coalition of the House
Lambino Group circulated, together with the signature Constitution, from the Preamble to the Transitory
of Representatives in Manila Hotel sometime in
sheets, printed copies of the Lambino Group's draft petition Provisions. The proposed revisions have profound impact
October 2005;
which they later filed on 25 August 2006 with the COMELEC. on the Judiciary and the National Patrimony provisions of the
When asked if his group also circulated the draft of their existing Constitution, provisions that the Lambino Group's
amended petition filed on 30 August 2006 with the WHEREAS, the People's Consultative proposed changes do not touch. The Lambino Group's
COMELEC, Atty. Lambino initially replied that they circulated Commission on Charter Change created by Her proposed changes purport to affect only Articles VI and VII of
both. However, Atty. Lambino changed his answer and Excellency to recommend amendments to the the existing Constitution, including the introduction of new
stated that what his group circulated was the draft of the 30 1987 Constitution has submitted its final report Transitory Provisions.
August 2006 amended petition, not the draft of the 25 August sometime in December 2005;
2006 petition. The ULAP adopted Resolution No. 2006-02 on 14 January
WHEREAS, the ULAP is mindful of the current 2006 or more than six months before the filing of the 25
The Lambino Group would have this Court believe that they political developments in Congress which militates August 2006 petition or the 30 August 2006 amended
prepared the draft of the 30 August 2006 amended against the use of the expeditious form of petition with the COMELEC. However, ULAP Resolution No.
petition almost seven months earlier in February amending the 1987 Constitution; 2006-02 does not establish that ULAP or the Lambino Group
2006 when they started gathering signatures. Petitioner caused the circulation of the draft petition, together with the
Erico B. Aumentado's "Verification/Certification" of the 25 signature sheets, six months before the filing with the
WHEREAS, subject to the ratification of its COMELEC. On the contrary, ULAP Resolution No. 2006-02
August 2006 petition, as well as of the 30 August 2006 institutional members and the failure of Congress
amended petition, filed with the COMELEC, states as casts grave doubt on the Lambino Group's claim that
to amend the Constitution as a constituent they circulated the draft petition together with the
follows: assembly, ULAP has unanimously agreed to signature sheets. ULAP Resolution No. 2006-02 does not
pursue the constitutional reform agenda through refer at all to the draft petition or to the Lambino Group's
I have caused the preparation of the foregoing People's Initiative and Referendum without proposed changes.
[Amended] Petition in my personal capacity as a
In their Manifestation explaining their amended petition Group alleged that they circulated "the petition for proposed changes to the great majority of the people
before the COMELEC, the Lambino Group declared: initiative" but failed to mention the amended petition. This who signed the signature sheets.
contradicts what Atty. Lambino finally stated during the oral
arguments that what they circulated was the draft of
After the Petition was filed, Petitioners belatedly Thus, of the 6.3 million signatories, only 100,000 signatories
the amended petition of 30 August 2006.
realized that the proposed amendments alleged in could have received with certainty one copy each of the
the Petition, more specifically, paragraph 3 of petition, assuming a 100 percent distribution with no
Section 4 and paragraph 2 of Section 5 of the The Lambino Group cites as authority Corpus Juris wastage. If Atty. Lambino and company attached one copy
Transitory Provisions were inaccurately stated and Secundum, stating that "a signer who did not read the of the petition to each signature sheet, only 100,000
failed to correctly reflect their proposed measure attached to a referendum petition cannot signature sheets could have circulated with the petition.
amendments. question his signature on the ground that he did not Each signature sheet contains space for ten signatures.
understand the nature of the act." The Lambino Group Assuming ten people signed each of these 100,000
quotes an authority that cites a proposed signature sheets with the attached petition, the maximum
The Lambino Group did not allege that they were amending
change attached to the petition signed by the people. number of people who saw the petition before they signed
the petition because the amended petition was what they
Even the authority the Lambino Group quotes requires that the signature sheets would not exceed 1,000,000.
had shown to the people during the February to August 2006
the proposed change must be attached to the petition. The
signature-gathering. Instead, the Lambino Group alleged that
same authority the Lambino Group quotes requires the
the petition of 25 August 2006 "inaccurately stated and failed With only 100,000 printed copies of the petition, it would be
people to sign on the petition itself.
to correctly reflect their proposed amendments." physically impossible for all or a great majority of the 6.3
million signatories to have seen the petition before they
Indeed, it is basic in American jurisprudence that the signed the signature sheets. The inescapable conclusion
The Lambino Group never alleged in the 25 August 2006
proposed amendment must be incorporated with, or attached is that the Lambino Group failed to show to the 6.3
petition or the 30 August 2006 amended petition with the
to, the initiative petition signed by the people. In the present million signatories the full text of the proposed changes.
COMELEC that they circulated printed copies of the draft
initiative, the Lambino Group's proposed changes were not If ever, not more than one million signatories saw the petition
petition together with the signature sheets. Likewise, the
incorporated with, or attached to, the signature sheets. The before they signed the signature sheets.
Lambino Group did not allege in their present petition before
Lambino Group's citation of Corpus Juris Secundumpulls the
this Court that they circulated printed copies of the draft
rug from under their feet.
petition together with the signature sheets. The signature In any event, the Lambino Group's signature sheets do not
sheets do not also contain any indication that the draft contain the full text of the proposed changes, either on the
petition is attached to, or circulated with, the signature It is extremely doubtful that the Lambino Group prepared, face of the signature sheets, or as attachment with an
sheets. printed, circulated, from February to August 2006 during the indication in the signature sheet of such
signature-gathering period, the draft of the petition or attachment. Petitioner Atty. Lambino admitted this during
amended petition they filed later with the COMELEC. The the oral arguments, and this admission binds the
It is only in their Consolidated Reply to the Opposition-in-
Lambino Group are less than candid with this Court in their Lambino Group. This fact is also obvious from a mere
Interventions that the Lambino Group first claimed that they
belated claim that they printed and circulated, together with reading of the signature sheet. This omission is fatal.
circulated the "petition for initiative filed with the COMELEC,"
the signature sheets, the petition or amended The failure to so include the text of the proposed changes in
thus:
petition. Nevertheless, even assuming the Lambino the signature sheets renders the initiative void for non-
Group circulated the amended petition during the compliance with the constitutional requirement that the
[T]here is persuasive authority to the effect signature-gathering period, the Lambino Group admitted amendment must be "directly proposed by the people
that "(w)here there is not (sic) fraud, a signer circulating only very limited copies of the petition. through initiative upon a petition." The signature sheet is
who did not read the measure attached to a not the "petition" envisioned in the initiative clause of the
referendum petition cannot question his Constitution.
During the oral arguments, Atty. Lambino expressly
signature on the ground that he did not
admitted that they printed only 100,000 copies of the
understand the nature of the act." [82 C.J.S.
draft petition they filed more than six months later with For sure, the great majority of the 6.3 million people who
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283
the COMELEC. Atty. Lambino added that he also asked signed the signature sheets did not see the full text of the
Mo. 546.] Thus, the registered voters who
other supporters to print additional copies of the draft petition proposed changes before signing. They could not have
signed the signature sheets circulated together
but he could not state with certainty how many additional known the nature and effect of the proposed changes,
with the petition for initiative filed with the
copies the other supporters printed. Atty. Lambino could among which are:
COMELEC below, are presumed to have
only assure this Court of the printing of 100,000 copies
understood the proposition contained in the
because he himself caused the printing of these 100,000
petition. (Emphasis supplied) 1. The term limits on members of the
copies.
legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
The Lambino Group's statement that they circulated to the
Likewise, in the Lambino Group's Memorandum filed on 11
people "the petition for initiative filed with the COMELEC"
October 2006, the Lambino Group expressly admits that
appears an afterthought, made after the intervenors 2. The interim Parliament can continue to function
"petitioner Lambino initiated the printing and
Integrated Bar of the Philippines (Cebu City Chapter and indefinitely until its members, who are almost all
reproduction of 100,000 copies of the petition for
Cebu Province Chapters) and Atty. Quadra had pointed out the present members of Congress, decide to call
initiative x x x."25 This admission binds the Lambino
that the signature sheets did not contain the text of the for new parliamentary elections. Thus,
Group and establishes beyond any doubt that the
proposed changes. In their Consolidated Reply, the Lambino the members of the interim Parliament will
Lambino Group failed to show the full text of the
determine the expiration of their own term of members of the House of Representatives to hold office Combining multiple propositions into one
office; 27 beyond their current three-year term of office, and possibly proposal constitutes "logrolling," which, if our
even beyond the five-year term of office of regular members judicial responsibility is to mean anything, we
of the Parliament. Certainly, this is contrary to the cannot permit. The very broadness of the
3. Within 45 days from the ratification of the
representations of Atty. Lambino and his group to the proposed amendment amounts to logrolling
proposed changes, the interim Parliament shall
6.3 million people who signed the signature sheets. Atty. because the electorate cannot know what it is
convene to propose further amendments or
Lambino and his group deceived the 6.3 million voting on - the amendment's proponents' simplistic
revisions to the Constitution.28
signatories, and even the entire nation. explanation reveals only the tip of the iceberg. x x
x x The ballot must give the electorate fair notice
These three specific amendments are not stated or even of the proposed amendment being voted on. x x x
This lucidly shows the absolute need for the people to sign
indicated in the Lambino Group's signature sheets. The x The ballot language in the instant case fails to do
an initiative petition that contains the full text of the proposed
people who signed the signature sheets had no idea that that. The very broadness of the proposal makes it
amendments to avoid fraud or misrepresentation. In the
they were proposing these amendments. These three impossible to state what it will affect and effect and
present initiative, the 6.3 million signatories had to rely on
proposed changes are highly controversial. The people could violates the requirement that proposed
the verbal representations of Atty. Lambino and his group
not have inferred or divined these proposed changes merely amendments embrace only one subject.
because the signature sheets did not contain the full text of
from a reading or rereading of the contents of the signature (Emphasis supplied)
the proposed changes. The result is a grand deception on
sheets.
the 6.3 million signatories who were led to believe that the
proposed changes would require the holding in 2007 of Logrolling confuses and even deceives the people. In Yute
During the oral arguments, petitioner Atty. Lambino stated elections for the regular Parliament simultaneously with the Air Alaska v. McAlpine,30 the Supreme Court of Alaska
that he and his group assured the people during the local elections. warned against "inadvertence, stealth and fraud" in
signature-gathering that the elections for the regular logrolling:
Parliament would be held during the 2007 local
The Lambino Group's initiative springs another surprise on
elections if the proposed changes were ratified before the
the people who signed the signature sheets. The proposed Whenever a bill becomes law through the initiative process,
2007 local elections. However, the text of the proposed
changes mandate the interim Parliament to make further all of the problems that the single-subject rule was enacted
changes belies this.
amendments or revisions to the Constitution. The proposed to prevent are exacerbated. There is a greater danger of
Section 4(4), Article XVIII on Transitory Provisions, provides: logrolling, or the deliberate intermingling of issues to
The proposed Section 5(2), Article XVIII on Transitory increase the likelihood of an initiative's passage, and there
Provisions, as found in the amended petition, states: is a greater opportunity for "inadvertence, stealth and
Section 4(4). Within forty-five days from ratification
fraud" in the enactment-by-initiative process. The
of these amendments, the interim Parliament shall
drafters of an initiative operate independently of any
Section 5(2). The interim Parliament shall provide convene to propose amendments to, or
structured or supervised process. They often emphasize
for the election of the members of revisions of, this Constitution consistent with
particular provisions of their proposition, while remaining
Parliament, which shall be synchronized and the principles of local autonomy, decentralization
silent on other (more complex or less appealing) provisions,
held simultaneously with the election of all and a strong bureaucracy. (Emphasis supplied)
when communicating to the public. x x x Indeed, initiative
local government officials. x x x x (Emphasis promoters typically use simplistic advertising to present
supplied) their initiative to potential petition-signers and eventual
During the oral arguments, Atty. Lambino stated that this
provision is a "surplusage" and the Court and the people voters. Many voters will never read the full text of the
Section 5(2) does not state that the elections for the regular should simply ignore it. Far from being a surplusage, this initiative before the election. More importantly, there is no
Parliament will be held simultaneously with the 2007 local provision invalidates the Lambino Group's initiative. process for amending or splitting the several provisions in an
elections. This section merely requires that the elections for initiative proposal. These difficulties clearly distinguish the
the regular Parliament shall be held simultaneously with the initiative from the legislative process. (Emphasis supplied)
Section 4(4) is a subject matter totally unrelated to the shift
local elections without specifying the year.
from the Bicameral-Presidential to the Unicameral-
Parliamentary system. American jurisprudence on initiatives Thus, the present initiative appears merely a preliminary step
Petitioner Atty. Lambino, who claims to be the principal outlaws this as logrolling - when the initiative petition for further amendments or revisions to be undertaken by the
drafter of the proposed changes, could have easily written incorporates an unrelated subject matter in the same interim Parliament as a constituent assembly. The people
the word "next" before the phrase "election of all local petition. This puts the people in a dilemma since they can who signed the signature sheets could not have known that
government officials." This would have insured that the answer only either yes or no to the entire proposition, forcing their signatures would be used to propose an
elections for the regular Parliament would be held in the next them to sign a petition that effectively contains two amendment mandating the interim Parliament to
local elections following the ratification of the proposed propositions, one of which they may find unacceptable. propose further amendments or revisions to the
changes. However, the absence of the word "next" allows Constitution.
the interim Parliament to schedule the elections for the
Under American jurisprudence, the effect of logrolling is
regular Parliament simultaneously with any future local
to nullify the entire proposition and not only the unrelated Apparently, the Lambino Group inserted the proposed
elections.
subject matter. Thus, in Fine v. Firestone,29 the Supreme Section 4(4) to compel the interim Parliament to amend or
Court of Florida declared: revise again the Constitution within 45 days from ratification
Thus, the members of the interim Parliament will decide the of the proposed changes, or before the May 2007
expiration of their own term of office. This allows incumbent elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or operate as a gigantic fraud on the people. That is why the second mode is through a constitutional convention. The
revise again the Constitution. With the proposed Section Constitution requires that an initiative must be "directly third mode is through a people's initiative.
4(4), the initiative proponents want the interim proposed by the people x x x in a petition" - meaning that
Parliament mandated to immediately amend or revise again the people must sign on a petition that contains the full text
Section 1 of Article XVII, referring to the first and second
the Constitution. of the proposed amendments. On so vital an issue as
modes, applies to "[A]ny amendment to, or revision of, this
amending the nation's fundamental law, the writing of the
Constitution." In contrast, Section 2 of Article XVII, referring
text of the proposed amendments cannot be hidden from
However, the signature sheets do not explain the reason for to the third mode, applies only to "[A]mendments to this
the people under a general or special power of attorney to
this rush in amending or revising again so soon the Constitution." This distinction was intentional as shown by
unnamed, faceless, and unelected individuals.
Constitution. The signature sheets do not also explain what the following deliberations of the Constitutional Commission:
specific amendments or revisions the initiative proponents
want the interim Parliament to make, and why there is a The Constitution entrusts to the people the power to directly
MR. SUAREZ: Thank you, Madam President.
need for such further amendments or revisions. The people propose amendments to the Constitution. This Court trusts
are again left in the dark to fathom the nature and effect the wisdom of the people even if the members of this Court
of the proposed changes. Certainly, such an initiative is not do not personally know the people who sign the May we respectfully call the attention of the
"directly proposed by the people" because the people do not petition. However, this trust emanates from a Members of the Commission that pursuant to the
even know the nature and effect of the proposed changes. fundamental assumption: the full text of the proposed mandate given to us last night, we submitted this
amendment is first shown to the people before they sign afternoon a complete Committee Report No. 7
the petition, not after they have signed the petition. which embodies the proposed provision governing
There is another intriguing provision inserted in the Lambino
the matter of initiative. This is now covered by
Group's amended petition of 30 August 2006. The proposed
Section 2 of the complete committee report. With
Section 4(3) of the Transitory Provisions states: In short, the Lambino Group's initiative is void and
the permission of the Members, may I quote
unconstitutional because it dismally fails to comply with the
Section 2:
requirement of Section 2, Article XVII of the Constitution that
Section 4(3). Senators whose term of office ends
the initiative must be "directly proposed by the people
in 2010 shall be members of Parliament until noon
through initiative upon a petition." The people may, after five years from the date of
of the thirtieth day of June 2010.
the last plebiscite held, directly propose
amendments to this Constitution thru initiative
2. The Initiative Violates Section 2, Article XVII of the
After 30 June 2010, not one of the present Senators will upon petition of at least ten percent of the
Constitution Disallowing Revision through Initiatives
remain as member of Parliament if the interim Parliament registered voters.
does not schedule elections for the regular Parliament by 30
June 2010. However, there is no counterpart provision for A people's initiative to change the Constitution applies only
This completes the blanks appearing in the original
the present members of the House of Representatives even to an amendment of the Constitution and not to its revision.
Committee Report No. 7. This proposal was
if their term of office will all end on 30 June 2007, three years In contrast, Congress or a constitutional convention can
suggested on the theory that this matter of
earlier than that of half of the present Senators. Thus, all the propose both amendments and revisions to the Constitution.
initiative, which came about because of the
present members of the House will remain members of the Article XVII of the Constitution provides:
extraordinary developments this year, has to be
interim Parliament after 30 June 2010.
separated from the traditional modes of amending
ARTICLE XVII the Constitution as embodied in Section 1. The
The term of the incumbent President ends on 30 June 2010. AMENDMENTS OR REVISIONS committee members felt that this system of
Thereafter, the Prime Minister exercises all the powers of the initiative should be limited to amendments to
President. If the interim Parliament does not schedule the Constitution and should not extend to the
Sec. 1. Any amendment to, or revision of, this
elections for the regular Parliament by 30 June 2010, the revision of the entire Constitution, so we
Constitution may be proposed by:
Prime Minister will come only from the present members of removed it from the operation of Section 1 of
the House of Representatives to the exclusion of the the proposed Article on Amendment or
present Senators. (1) The Congress, upon a vote of three-fourths of Revision. x x x x
all its Members, or
The signature sheets do not explain this discrimination xxxx
against the Senators. The 6.3 million people who signed (2) A constitutional convention.
the signature sheets could not have known that their
MS. AQUINO: [I] am seriously bothered by
signatures would be used to discriminate against the
Sec. 2. Amendments to this Constitution may providing this process of initiative as a separate
Senators. They could not have known that their
likewise be directly proposed by the people section in the Article on Amendment. Would the
signatures would be used to limit, after 30 June 2010,
through initiative x x x. (Emphasis supplied) sponsor be amenable to accepting an amendment
the interim Parliament's choice of Prime Minister only to
in terms of realigning Section 2 as another
members of the existing House of Representatives.
subparagraph (c) of Section 1, instead of setting it
Article XVII of the Constitution speaks of three modes of
up as another separate section as if it were a self-
An initiative that gathers signatures from the people amending the Constitution. The first mode is through executing provision?
without first showing to the people the full text of the Congress upon three-fourths vote of all its Members. The
proposed amendments is most likely a deception, and can
MR. SUAREZ: We would be amenable except This has been the consistent ruling of state supreme courts Whether it be a revision or a new constitution, it is
that, as we clarified a while ago, this process of in the United States. Thus, in McFadden v. Jordan,32the not such a measure as can be submitted to the
initiative is limited to the matter of amendment Supreme Court of California ruled: people through the initiative. If a revision, it is
and should not expand into a revision which subject to the requirements of Article XVII, Section
contemplates a total overhaul of the 2(1); if a new constitution, it can only be proposed
The initiative power reserved by the people by
Constitution. That was the sense that was at a convention called in the manner provided in
amendment to the Constitution x x x applies
conveyed by the Committee. Article XVII, Section 1. x x x x
only to the proposing and the adopting or
rejecting of 'laws and amendments to the
MS. AQUINO: In other words, the Committee Constitution' and does not purport to extend to Similarly, in this jurisdiction there can be no dispute that a
was attempting to distinguish the coverage of a constitutional revision. x x x x It is thus clear people's initiative can only propose amendments to the
modes (a) and (b) in Section 1 to include the that a revision of the Constitution may be Constitution since the Constitution itself limits initiatives to
process of revision; whereas, the process of accomplished only through ratification by the amendments. There can be no deviation from the
initiation to amend, which is given to the people of a revised constitution proposed by a constitutionally prescribed modes of revising the
public, would only apply to amendments? convention called for that purpose as outlined Constitution. A popular clamor, even one backed by 6.3
hereinabove. Consequently if the scope of the million signatures, cannot justify a deviation from the specific
proposed initiative measure (hereinafter termed modes prescribed in the Constitution itself.
MR. SUAREZ: That is right. Those were the
'the measure') now before us is so broad that if
terms envisioned in the Committee.
such measure became law a substantial revision
As the Supreme Court of Oklahoma ruled in In re Initiative
of our present state Constitution would be
Petition No. 364:34
MS. AQUINO: I thank the sponsor; and thank you, effected, then the measure may not properly be
Madam President. submitted to the electorate until and unless it is
first agreed upon by a constitutional convention, It is a fundamental principle that a constitution
and the writ sought by petitioner should issue. x x can only be revised or amended in the manner
xxxx x x (Emphasis supplied) prescribed by the instrument itself, and that
any attempt to revise a constitution in a
MR. MAAMBONG: My first question: manner other than the one provided in the
Likewise, the Supreme Court of Oregon ruled in Holmes v.
Commissioner Davide's proposed amendment instrument is almost invariably treated as
Appling:33
on line 1 refers to "amendments." Does it not extra-constitutional and revolutionary. x x x x
cover the word "revision" as defined by "While it is universally conceded that the people
Commissioner Padilla when he made the It is well established that when a constitution are sovereign and that they have power to adopt a
distinction between the words "amendments" specifies the manner in which it may be amended constitution and to change their own work at will,
and "revision"? or revised, it can be altered by those who favor they must, in doing so, act in an orderly manner
amendments, revision, or other change only and according to the settled principles of
through the use of one of the specified means. constitutional law. And where the people, in
MR. DAVIDE: No, it does not, because
The constitution itself recognizes that there is a adopting a constitution, have prescribed the
"amendments" and "revision" should be
difference between an amendment and a revision; method by which the people may alter or amend it,
covered by Section 1. So insofar as initiative is
and it is obvious from an examination of the an attempt to change the fundamental law in
concerned, it can only relate to "amendments"
measure here in question that it is not an violation of the self-imposed restrictions, is
not "revision."
amendment as that term is generally understood unconstitutional." x x x x (Emphasis supplied)
and as it is used in Article IV, Section 1. The
MR. MAAMBONG: Thank you.31 (Emphasis document appears to be based in large part on the
This Court, whose members are sworn to defend and protect
supplied) revision of the constitution drafted by the
the Constitution, cannot shirk from its solemn oath and duty
'Commission for Constitutional Revision'
to insure compliance with the clear command of the
authorized by the 1961 Legislative Assembly, x x x
There can be no mistake about it. The framers of the Constitution ― that a people's initiative may only amend,
and submitted to the 1963 Legislative Assembly. It
Constitution intended, and wrote, a clear distinction never revise, the Constitution.
failed to receive in the Assembly the two-third's
between "amendment" and "revision" of the Constitution. The majority vote of both houses required by Article
framers intended, and wrote, that only Congress or a XVII, Section 2, and hence failed of adoption, x x The question is, does the Lambino Group's initiative
constitutional convention may propose revisions to the x. constitute an amendment or revision of the Constitution? If
Constitution. The framers intended, and wrote, that a
the Lambino Group's initiative constitutes a revision, then the
people's initiative may propose only amendments to the
present petition should be dismissed for being outside the
Constitution. Where the intent and language of the While differing from that document in material
scope of Section 2, Article XVII of the Constitution.
Constitution clearly withhold from the people the power to respects, the measure sponsored by the plaintiffs
propose revisions to the Constitution, the people cannot is, nevertheless, a thorough overhauling of the
propose revisions even as they are empowered to propose present constitution x x x. Courts have long recognized the distinction between an
amendments. amendment and a revision of a constitution. One of the
earliest cases that recognized the distinction described the
To call it an amendment is a misnomer.
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument proposed changes alter substantially the basic plan of Florida, striking down the initiative as outside the scope of
of a permanent and abiding nature, and government, from presidential to parliamentary, and from a the initiative clause, ruled as follows:
the provisions contained therein for its revision bicameral to a unicameral legislature.
indicate the will of the people that the
The proposal here to amend Section 1 of Article III
underlying principles upon which it rests, as
A change in the structure of government is a revision of the of the 1968 Constitution to provide for a
well as the substantial entirety of the
Constitution, as when the three great co-equal branches of Unicameral Legislature affects not only many
instrument, shall be of a like permanent and
government in the present Constitution are reduced into other provisions of the Constitution but
abiding nature. On the other hand, the significance
two. This alters the separation of powers in the provides for a change in the form of the
of the term "amendment" implies such an addition
Constitution. A shift from the present Bicameral- legislative branch of government, which has
or change within the lines of the original instrument
Presidential system to a Unicameral-Parliamentary system is been in existence in the United States Congress
as will effect an improvement, or better carry out
a revision of the Constitution. Merging the legislative and and in all of the states of the nation, except one,
the purpose for which it was framed.35 (Emphasis
executive branches is a radical change in the structure of since the earliest days. It would be difficult to
supplied)
government. visualize a more revolutionary change. The
concept of a House and a Senate is basic in the
Revision broadly implies a change that alters a basic American form of government. It would not only
The abolition alone of the Office of the President as the locus
principle in the constitution, like altering the principle of radically change the whole pattern of
of Executive Power alters the separation of powers and thus
separation of powers or the system of checks-and-balances. government in this state and tear apart the
constitutes a revision of the Constitution. Likewise, the
There is also revision if the change alters the substantial whole fabric of the Constitution, but would
abolition alone of one chamber of Congress alters the
entirety of the constitution, as when the change affects even affect the physical facilities necessary to
system of checks-and-balances within the legislature and
substantial provisions of the constitution. On the other carry on government.
constitutes a revision of the Constitution.
hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle
xxxx
involved. Revision generally affects several provisions of By any legal test and under any jurisdiction, a shift from a
the constitution, while amendment generally affects only the Bicameral-Presidential to a Unicameral-Parliamentary
specific provision being amended. system, involving the abolition of the Office of the President We conclude with the observation that if such
and the abolition of one chamber of Congress, is beyond proposed amendment were adopted by the people
doubt a revision, not a mere amendment. On the face alone at the General Election and if the Legislature at its
In California where the initiative clause allows amendments
of the Lambino Group's proposed changes, it is readily next session should fail to submit further
but not revisions to the constitution just like in our
apparent that the changes will radically alter the amendments to revise and clarify the numerous
Constitution, courts have developed a two-part test: the
framework of government as set forth in the inconsistencies and conflicts which would result, or
quantitative test and the qualitative test. The quantitative test
Constitution. Father Joaquin Bernas, S.J., a leading if after submission of appropriate amendments the
asks whether the proposed change is "so extensive in its
member of the Constitutional Commission, writes: people should refuse to adopt them, simple chaos
provisions as to change directly the 'substantial entirety' of
would prevail in the government of this State. The
the constitution by the deletion or alteration of numerous
same result would obtain from an amendment, for
existing provisions."36 The court examines only the number An amendment envisages an alteration of one or a few
instance, of Section 1 of Article V, to provide for
of provisions affected and does not consider the degree of specific and separable provisions. The guiding original
only a Supreme Court and Circuit Courts-and
the change. intention of an amendment is to improve specific parts or to
there could be other examples too numerous to
add new provisions deemed necessary to meet new
detail. These examples point unerringly to the
conditions or to suppress specific portions that may have
The qualitative test inquires into the qualitative effects of the answer.
become obsolete or that are judged to be dangerous. In
proposed change in the constitution. The main inquiry is
revision, however, the guiding original intention and plan
whether the change will "accomplish such far reaching
contemplates a re-examination of the entire document, or of The purpose of the long and arduous work of the
changes in the nature of our basic governmental plan as to
provisions of the document which have over-all implications hundreds of men and women and many sessions
amount to a revision."37 Whether there is an alteration in the
for the entire document, to determine how and to what extent of the Legislature in bringing about the
structure of government is a proper subject of inquiry. Thus,
they should be altered. Thus, for instance a switch from Constitution of 1968 was to eliminate
"a change in the nature of [the] basic governmental plan"
the presidential system to a parliamentary system would inconsistencies and conflicts and to give the State
includes "change in its fundamental framework or the
be a revision because of its over-all impact on the entire a workable, accordant, homogenous and up-to-
fundamental powers of its Branches."38 A change in the
constitutional structure. So would a switch from a date document. All of this could disappear very
nature of the basic governmental plan also includes changes
bicameral system to a unicameral system be because of quickly if we were to hold that it could be amended
that "jeopardize the traditional form of government and the
its effect on other important provisions of the in the manner proposed in the initiative petition
system of check and balances."39
Constitution.41 (Emphasis supplied) here.43(Emphasis supplied)
I. EXECUTION OF
b. Requisite It is also the thesis of petitioner that since Manila Hotel is
THE NECESSARY
approvals from the part of the national patrimony and its business also
CONTRACTS
GSIS/MHC and unquestionably part of the national economy petitioner
WITH GSIS/MHC
COP (Committee on should be preferred after it has matched the bid offer of the
—
Privatization)/OGC Malaysian firm. For the bidding rules mandate that if for any
C (Office of the reason, the Highest Bidder cannot be awarded the Block of
1. The Highest Bidder must comply with Government Shares, GSIS may offer this to the other Qualified Bidders
the conditions set forth below by Corporate Counsel) that have validly submitted bids provided that these Qualified
October 23, 1995 (reset to November 3, are obtained.3 Bidders are willing to match the highest bid in terms of price
1995) or the Highest Bidder will lose the per share.8
right to purchase the Block of Shares
Pending the declaration of Renong Berhad as the winning
and GSIS will instead offer the Block of
bidder/strategic partner and the execution of the necessary Respondents except. They maintain that: First, Sec. 10,
Shares to the other Qualified Bidders:
contracts, petitioner in a letter to respondent GSIS dated 28 second par., Art. XII, of the 1987 Constitution is merely a
September 1995 matched the bid price of P44.00 per share statement of principle and policy since it is not a self-
a. The Highest tendered by Renong Berhad.4 In a subsequent letter dated executing provision and requires implementing legislation(s)
Bidder must 10 October 1995 petitioner sent a manager's check issued . . . Thus, for the said provision to Operate, there must be
negotiate and by Philtrust Bank for Thirty-three Million Pesos existing laws "to lay down conditions under which business
execute with the (P33.000.000.00) as Bid Security to match the bid of the may be done."9
GSIS/MHC the Malaysian Group, Messrs. Renong Berhad . . .5 which
Management respondent GSIS refused to accept.
Second, granting that this provision is self-executing, Manila
Contract,
Hotel does not fall under the term national patrimony which
International
On 17 October 1995, perhaps apprehensive that respondent only refers to lands of the public domain, waters, minerals,
Marketing/Reservati
GSIS has disregarded the tender of the matching bid and coal, petroleum and other mineral oils, all forces of potential
on System Contract
that the sale of 51% of the MHC may be hastened by energy, fisheries, forests or timber, wildlife, flora and fauna
or other type of
respondent GSIS and consummated with Renong Berhad, and all marine wealth in its territorial sea, and exclusive
contract specified
petitioner came to this Court on prohibition and mandamus. marine zone as cited in the first and second paragraphs of
by the Highest
On 18 October 1995 the Court issued a temporary Sec. 2, Art. XII, 1987 Constitution. According to respondents,
Bidder in its
restraining order enjoining respondents from perfecting and while petitioner speaks of the guests who have slept in the
strategic plan for
consummating the sale to the Malaysian firm. hotel and the events that have transpired therein which make
the Manila Hotel. . .
the hotel historic, these alone do not make the hotel fall
.
under the patrimony of the nation. What is more, the
On 10 September 1996 the instant case was accepted by
mandate of the Constitution is addressed to the State, not to
the Court En Banc after it was referred to it by the First
b. The Highest respondent GSIS which possesses a personality of its own
Division. The case was then set for oral arguments with
Bidder must separate and distinct from the Philippines as a State.
former Chief Justice Enrique M. Fernando and Fr. Joaquin
execute the Stock
G. Bernas, S.J., as amici curiae.
Purchase and Sale
Third, granting that the Manila Hotel forms part of
Agreement with
the national patrimony, the constitutional provision invoked is
GSIS . . . . In the main, petitioner invokes Sec. 10, second par., Art. XII,
still inapplicable since what is being sold is only 51% of the
of the 1987 Constitution and submits that the Manila
outstanding shares of the corporation, not the hotel building
Hotel has been identified with the Filipino nation and has
K. DECLARATION nor the land upon which the building stands. Certainly, 51%
practically become a historical monument which reflects the
OF THE WINNING of the equity of the MHC cannot be considered part of
vibrancy of Philippine heritage and culture. It is a proud
BIDDER/STRATEG the national patrimony. Moreover, if the disposition of the
legacy of an earlier generation of Filipinos who believed in
IC PARTNER — shares of the MHC is really contrary to the Constitution,
the nobility and sacredness of independence and its power
petitioner should have questioned it right from the beginning
and capacity to release the full potential of the Filipino
and not after it had lost in the bidding.
The Highest Bidder will be declared the people. To all intents and purposes, it has become a part of
Winning Bidder/Strategic Partner after the national patrimony.6 Petitioner also argues that since
the following conditions are met: 51% of the shares of the MHC carries with it the ownership Fourth, the reliance by petitioner on par. V., subpar. J. 1., of
of the business of the hotel which is owned by respondent the bidding rules which provides that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, grants may be enjoyed or protected, is self-executing. Thus preference to
GSIS may offer this to the other Qualified Bidders that have a constitutional provision is self-executing if the nature and qualified
validly submitted bids provided that these Qualified Bidders extent of the right conferred and the liability imposed are Filipinos vis-a-
are willing to match the highest bid in terms of price per fixed by the constitution itself, so that they can be vis Filipinos who are
share, is misplaced. Respondents postulate that the privilege determined by an examination and construction of its terms, not qualified. So,
of submitting a matching bid has not yet arisen since it only and there is no language indicating that the subject is why do we not
takes place if for any reason, the Highest Bidder cannot be referred to the legislature for action. 13 make it clear? To
awarded the Block of Shares. Thus the submission by qualified Filipinos as
petitioner of a matching bid is premature since Renong against aliens?
As against constitutions of the past, modern constitutions
Berhad could still very well be awarded the block of shares
have been generally drafted upon a different principle and
and the condition giving rise to the exercise of the privilege
have often become in effect extensive codes of laws THE PRESIDENT.
to submit a matching bid had not yet taken place.
intended to operate directly upon the people in a manner What is the
similar to that of statutory enactments, and the function of question of
Finally, the prayer for prohibition grounded on grave abuse constitutional conventions has evolved into one more like Commissioner
of discretion should fail since respondent GSIS did not that of a legislative body. Hence, unless it is expressly Rodrigo? Is it to
exercise its discretion in a capricious, whimsical manner, and provided that a legislative act is necessary to enforce a remove the word
if ever it did abuse its discretion it was not so patent and constitutional mandate, the presumption now is that all "QUALIFIED?".
gross as to amount to an evasion of a positive duty or a provisions of the constitution are self-executing If the
virtual refusal to perform a duty enjoined by law. Similarly, constitutional provisions are treated as requiring legislation
MR. RODRIGO. No,
the petition for mandamus should fail as petitioner has no instead of self-executing, the legislature would have the
no, but say
clear legal right to what it demands and respondents do not power to ignore and practically nullify the mandate of the
definitely "TO
have an imperative duty to perform the act required of them fundamental law.14 This can be cataclysmic. That is why the
QUALIFIED
by petitioner. prevailing view is, as it has always been, that —
FILIPINOS" as
against whom? As
We now resolve. A constitution is a system of fundamental . . . in case of doubt, the Constitution against aliens or
laws for the governance and administration of a nation. It is should be considered self-executing over aliens?
supreme, imperious, absolute and unalterable except by the rather than non-self-executing . . . .
authority from which it emanates. It has been defined as Unless the contrary is clearly intended,
MR. NOLLEDO.
the fundamental and paramount law of the nation. 10 It the provisions of the Constitution should
Madam President, I
prescribes the permanent framework of a system of be considered self-executing, as a
think that is
government, assigns to the different departments their contrary rule would give the legislature
understood. We use
respective powers and duties, and establishes certain fixed discretion to determine when, or
the word
principles on which government is founded. The fundamental whether, they shall be effective. These
"QUALIFIED"
conception in other words is that it is a supreme law to which provisions would be subordinated to the
because
all other laws must conform and in accordance with which all will of the lawmaking body, which could
the existing laws or
private rights must be determined and all public authority make them entirely meaningless by
prospective laws
administered. 11 Under the doctrine of constitutional simply refusing to pass the needed
will always lay down
supremacy, if a law or contract violates any norm of the implementing statute. 15
conditions under
constitution that law or contract whether promulgated by the
which business may
legislative or by the executive branch or entered into by
Respondents argue that Sec. 10, second par., Art. XII, of the be done. For
private persons for private purposes is null and void and
1987 Constitution is clearly not self-executing, as they quote example,
without any force and effect. Thus, since the Constitution is
from discussions on the floor of the 1986 Constitutional qualifications on the
the fundamental, paramount and supreme law of the nation,
Commission — setting up of other
it is deemed written in every statute and contract.
financial structures,
et cetera (emphasis
MR. RODRIGO.
Admittedly, some constitutions are merely declarations of supplied by
Madam President, I
policies and principles. Their provisions command the respondents)
am asking this
legislature to enact laws and carry out the purposes of the
question as the
framers who merely establish an outline of government
Chairman of the MR. RODRIGO. It is
providing for the different departments of the governmental
Committee on Style. just a matter of
machinery and securing certain fundamental and inalienable
If the wording of style.
rights of citizens. 12 A provision which lays down a general
"PREFERENCE" is
principle, such as those found in Art. II of the 1987
given to
Constitution, is usually not self-executing. But a provision MR. NOLLEDO
QUALIFIED
which is complete in itself and becomes operative without Yes, 16
FILIPINOS," can it
the aid of supplementary or enabling legislation, or that
be understood as a
which supplies sufficient rule by means of which the right it
Quite apparently, Sec. 10, second par., of Art XII is couched of the youth in nation-building 23 the promotion of social Manila Hotel has become a landmark — a living testimonial
in such a way as not to make it appear that it is non-self- justice, 24 and the values of education. 25 Tolentino of Philippine heritage. While it was restrictively an American
executing but simply for purposes of style. But, certainly, the v. Secretary of Finance 26 refers to the constitutional hotel when it first opened in 1912, it immediately evolved to
legislature is not precluded from enacting other further laws provisions on social justice and human rights 27 and on be truly Filipino, Formerly a concourse for the elite, it has
to enforce the constitutional provision so long as the education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites since then become the venue of various significant events
contemplated statute squares with the Constitution. Minor provisions on the promotion of general welfare, 30 the which have shaped Philippine history. It was called
details may be left to the legislature without impairing the sanctity of family life, 31 the vital role of the youth in nation- the Cultural Center of the 1930's. It was the site of the
self-executing nature of constitutional provisions. building 32 and the promotion of total human liberation and festivities during the inauguration of the Philippine
development. 33A reading of these provisions indeed clearly Commonwealth. Dubbed as the Official Guest House of the
shows that they are not judicially enforceable constitutional Philippine Government. it plays host to dignitaries and official
In self-executing constitutional provisions, the legislature
rights but merely guidelines for legislation. The very terms of visitors who are accorded the traditional Philippine
may still enact legislation to facilitate the exercise of powers
the provisions manifest that they are only principles upon hospitality. 36
directly granted by the constitution, further the operation of
which the legislations must be based. Res ipsa loquitur.
such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection The history of the hotel has been chronicled in the book The
of the rights secured or the determination thereof, or place On the other hand, Sec. 10, second par., Art. XII of the of the Manila Hotel: The Heart and Memory of a City. 37During
reasonable safeguards around the exercise of the right. The 1987 Constitution is a mandatory, positive command which World War II the hotel was converted by the Japanese
mere fact that legislation may supplement and add to or is complete in itself and which needs no further guidelines or Military Administration into a military headquarters. When the
prescribe a penalty for the violation of a self-executing implementing laws or rules for its enforcement. From its very American forces returned to recapture Manila the hotel was
constitutional provision does not render such a provision words the provision does not require any legislation to put it selected by the Japanese together with Intramuros as the
ineffective in the absence of such legislation. The omission in operation. It is per se judicially enforceable When our two (2) places fro their final stand. Thereafter, in the 1950's
from a constitution of any express provision for a remedy for Constitution mandates that [i]n the grant of rights, privileges, and 1960's, the hotel became the center of political activities,
enforcing a right or liability is not necessarily an indication and concessions covering national economy and patrimony, playing host to almost every political convention. In 1970 the
that it was not intended to be self-executing. The rule is that the State shall give preference to qualified Filipinos, it means hotel reopened after a renovation and reaped numerous
a self-executing provision of the constitution does not just that — qualified Filipinos shall be preferred. And when international recognitions, an acknowledgment of the Filipino
necessarily exhaust legislative power on the subject, but any our Constitution declares that a right exists in certain talent and ingenuity. In 1986 the hotel was the site of a
legislation must be in harmony with the constitution, further specified circumstances an action may be maintained to failed coup d' etat where an aspirant for vice-president was
the exercise of constitutional right and make it more enforce such right notwithstanding the absence of any "proclaimed" President of the Philippine Republic.
available. 17 Subsequent legislation however does not legislation on the subject; consequently, if there is no statute
necessarily mean that the subject constitutional provision is especially enacted to enforce such constitutional right, such
For more than eight (8) decades Manila Hotel has bore mute
not, by itself, fully enforceable. right enforces itself by its own inherent potency and
witness to the triumphs and failures, loves and frustrations of
puissance, and from which all legislations must take their
the Filipinos; its existence is impressed with public interest;
bearings. Where there is a right there is a remedy. Ubi jus ibi
Respondents also argue that the non-self-executing nature its own historicity associated with our struggle for
remedium.
of Sec. 10, second par., of Art. XII is implied from the tenor sovereignty, independence and nationhood. Verily, Manila
of the first and third paragraphs of the same section which Hotel has become part of our national economy and
undoubtedly are not self-executing. 18 The argument is As regards our national patrimony, a member of the 1986 patrimony. For sure, 51% of the equity of the MHC comes
flawed. If the first and third paragraphs are not self-executing Constitutional Commission 34 explains — within the purview of the constitutional shelter for it
because Congress is still to enact measures to encourage comprises the majority and controlling stock, so that anyone
the formation and operation of enterprises fully owned by who acquires or owns the 51% will have actual control and
The patrimony of the Nation that should
Filipinos, as in the first paragraph, and the State still needs management of the hotel. In this instance, 51% of the MHC
be conserved and developed refers not
legislation to regulate and exercise authority over foreign cannot be disassociated from the hotel and the land on
only to out rich natural resources but
investments within its national jurisdiction, as in the third which the hotel edifice stands. Consequently, we cannot
also to the cultural heritage of out race.
paragraph, then a fortiori, by the same logic, the second sustain respondents' claim that the Filipino First
It also refers to our intelligence in arts,
paragraph can only be self-executing as it does not by its Policy provision is not applicable since what is being sold is
sciences and letters. Therefore, we
language require any legislation in order to give preference only 51% of the outstanding shares of the corporation, not
should develop not only our lands,
to qualified Filipinos in the grant of rights, privileges and the Hotel building nor the land upon which the building
forests, mines and other natural
concessions covering the national economy and patrimony. stands. 38
resources but also the mental ability or
A constitutional provision may be self-executing in one part
faculty of our people.
and non-self-executing in another. 19
The argument is pure sophistry. The term qualified
Filipinos as used in Our Constitution also includes
We agree. In its plain and ordinary meaning, the term
Even the cases cited by respondents holding that certain corporations at least 60% of which is owned by Filipinos.
patrimony pertains to heritage. 35 When the Constitution
constitutional provisions are merely statements of principles This is very clear from the proceedings of the 1986
speaks of national patrimony, it refers not only to the natural
and policies, which are basically not self-executing and only Constitutional Commission
resources of the Philippines, as the Constitution could have
placed in the Constitution as moral incentives to legislation,
very well used the term natural resources, but also to
not as judicially enforceable rights — are simply not in
the cultural heritage of the Filipinos. THE PRESIDENT.
point. Basco v. Philippine Amusements and Gaming
Commissioner
Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role
Davide is MR. DAVIDE. Is individual Filipinos
recognized. that the intention? but also Filipino-
controlled entities or
entities fully-
MR. DAVIDE. I MR. MONSOD.
controlled by
would like to Yes, because, in
Filipinos. 40
introduce an fact, we would be
amendment to the limiting it if we say
Nolledo that the preference The phrase preference to qualified Filipinos was
amendment. And should only be 100- explained thus —
the amendment percent Filipino.
would consist in
MR. FOZ. Madam
substituting the
MR: DAVIDE. I President, I would
words "QUALIFIED
want to get that like to request
FILIPINOS" with the
meaning clear Commissioner
following:
because Nolledo to please
"CITIZENS OF THE
"QUALIFIED restate his
PHILIPPINES OR
FILIPINOS" may amendment so that
CORPORATIONS
refer only to I can ask a
OR
individuals and not question.
ASSOCIATIONS
to juridical
WHOSE CAPITAL
personalities or
OR CONTROLLING MR. NOLLEDO. "IN
entities.
STOCK IS THE GRANT OF
WHOLLY OWNED RIGHTS,
BY SUCH MR. MONSOD. We PRIVILEGES AND
CITIZENS. agree, Madam CONCESSIONS
President. 39 COVERING THE
NATIONAL
xxx xxx xxx
ECONOMY AND
xxx xxx xxx
PATRIMONY, THE
MR. MONSOD. STATE SHALL
Madam President, MR. RODRIGO. GIVE
apparently the Before we vote, PREFERENCE TO
proponent is may I request that QUALIFIED
agreeable, but we the amendment be FILIPINOS."
have to raise a read again.
question. Suppose
MR FOZ. In
it is a corporation
MR. NOLLEDO. connection with that
that is 80-percent
The amendment will amendment, if a
Filipino, do we not
read: "IN THE foreign enterprise is
give it preference?
GRANT OF qualified and a
RIGHTS, Filipino enterprise is
MR. DAVIDE. The PRIVILEGES AND also qualified, will
Nolledo amendment CONCESSIONS the Filipino
would refer to an COVERING THE enterprise still be
individual Filipino. NATIONAL given a preference?
What about a ECONOMY AND
corporation wholly PATRIMONY, THE
MR. NOLLEDO.
owned by Filipino STATE SHALL
Obviously.
citizens? GIVE
PREFERENCE TO
QUALIFIED MR. FOZ. If the
MR. MONSOD. At
FILIPINOS." And foreigner is more
least 60 percent,
the word "Filipinos" qualified in some
Madam President.
here, as intended aspects than the
by the proponents, Filipino enterprise,
will include not only
will the Filipino still Lastly, the word qualified is also determinable. Petitioner was function;" (2) when the government is so significantly
be preferred? so considered by respondent GSIS and selected as one of involved with the private actor as to make the government
the qualified bidders. It was pre-qualified by respondent responsible for his action; and, (3) when the government has
GSIS in accordance with its own guidelines so that the sole approved or authorized the action. It is evident that the act of
MR. NOLLEDO.
inference here is that petitioner has been found to be respondent GSIS in selling 51% of its share in respondent
The answer is "yes."
possessed of proven management expertise in the hotel MHC comes under the second and third categories of "state
industry, or it has significant equity ownership in another action." Without doubt therefore the transaction. although
MR. FOZ. Thank hotel company, or it has an overall management and entered into by respondent GSIS, is in fact a transaction of
you, 41 marketing proficiency to successfully operate the Manila the State and therefore subject to the constitutional
Hotel. 44 command. 46
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues — The penchant to try to whittle away the mandate of the When the Constitution addresses the State it refers not only
Constitution by arguing that the subject provision is not self- to the people but also to the government as elements of the
executory and requires implementing legislation is quite State. After all, government is composed of three (3)
MR. NOLLEDO. Yes, Madam President. disturbing. The attempt to violate a clear constitutional divisions of power — legislative, executive and judicial.
Instead of "MUST," it will be "SHALL — provision — by the government itself — is only too Accordingly, a constitutional mandate directed to the State is
THE STATE SHALL GlVE
distressing. To adopt such a line of reasoning is to renounce correspondingly directed to the three(3) branches of
PREFERENCE TO QUALIFIED the duty to ensure faithfulness to the Constitution. For, even government. It is undeniable that in this case the subject
FILIPINOS. This embodies the so-called some of the provisions of the Constitution which evidently constitutional injunction is addressed among others to the
"Filipino First" policy. That means that
need implementing legislation have juridical life of their own Executive Department and respondent GSIS, a government
Filipinos should be given preference in and can be the source of a judicial remedy. We cannot instrumentality deriving its authority from the State.
the grant of concessions, privileges and simply afford the government a defense that arises out of the
rights covering the national patrimony. 42
failure to enact further enabling, implementing or guiding
It should be stressed that while the Malaysian firm offered
legislation. In fine, the discourse of Fr. Joaquin G. Bernas,
the higher bid it is not yet the winning bidder. The bidding
The exchange of views in the sessions of the Constitutional S.J., on constitutional government is apt —
rules expressly provide that the highest bidder shall only be
Commission regarding the subject provision was still further
declared the winning bidder after it has negotiated and
clarified by Commissioner Nolledo 43 — The executive department has a executed the necessary contracts, and secured the requisite
constitutional duty to implement laws, approvals. Since the "Filipino First Policy provision of the
Paragraph 2 of Section 10 explicitly including the Constitution, even before Constitution bestows preference on qualified Filipinos the
mandates the "Pro-Filipino" bias in all Congress acts — provided that there are mere tending of the highest bid is not an assurance that the
economic concerns. It is better known discoverable legal standards for highest bidder will be declared the winning bidder.
as the FILIPINO FIRST Policy . . . This executive action. When the executive Resultantly, respondents are not bound to make the award
provision was never found in previous acts, it must be guided by its own yet, nor are they under obligation to enter into one with the
Constitutions . . . . understanding of the constitutional highest bidder. For in choosing the awardee respondents are
command and of applicable laws. The mandated to abide by the dictates of the 1987 Constitution
responsibility for reading and the provisions of which are presumed to be known to all the
The term "qualified Filipinos" simply understanding the Constitution and the bidders and other interested parties.
means that preference shall be given to laws is not the sole prerogative of
those citizens who can make a viable Congress. If it were, the executive would
contribution to the common good, Adhering to the doctrine of constitutional supremacy, the
have to ask Congress, or perhaps the
because of credible competence and subject constitutional provision is, as it should be, impliedly
Court, for an interpretation every time
efficiency. It certainly does NOT written in the bidding rules issued by respondent GSIS, lest
the executive is confronted by a
mandate the pampering and preferential the bidding rules be nullified for being violative of the
constitutional command. That is not how
treatment to Filipino citizens or Constitution. It is a basic principle in constitutional law that all
constitutional government operates. 45
organizations that are incompetent or laws and contracts must conform with the fundamental law of
inefficient, since such an indiscriminate the land. Those which violate the Constitution lose their
preference would be counter productive Respondents further argue that the constitutional provision is reason for being.
and inimical to the common good. addressed to the State, not to respondent GSIS which by
itself possesses a separate and distinct personality. This
Paragraph V. J. 1 of the bidding rules provides that [if] for
argument again is at best specious. It is undisputed that the
In the granting of economic rights, any reason the Highest Bidder cannot be awarded the Block
sale of 51% of the MHC could only be carried out with the
privileges, and concessions, when a of Shares, GSIS may offer this to other Qualified Bidders that
prior approval of the State acting through respondent
choice has to be made between a have validly submitted bids provided that these Qualified
Committee on Privatization. As correctly pointed out by Fr.
"qualified foreigner" end a "qualified Bidders are willing to match the highest bid in terms of price
Joaquin G. Bernas, S.J., this fact alone makes the sale of
Filipino," the latter shall be chosen over per
the assets of respondents GSIS and MHC a "state action." In
the former." share. 47 Certainly, the constitutional mandate itself is reason
constitutional jurisprudence, the acts of persons distinct from
enough not to award the block of shares immediately to the
the government are considered "state action" covered by the
foreign bidder notwithstanding its submission of a higher, or
Constitution (1) when the activity it engages in is a "public
even the highest, bid. In fact, we cannot conceive of a Constitution lays down the basic conditions and parameters they do not violate the Constitution or
stronger reason than the constitutional injunction itself. for its actions. the laws, or are not adopted or
implemented with grave abuse of
discretion amounting to lack or excess
In the instant case, where a foreign firm submits the highest Since petitioner has already matched the bid price tendered
of jurisdiction. It will never shirk that
bid in a public bidding concerning the grant of rights, by Renong Berhad pursuant to the bidding rules, respondent
duty, no matter how buffeted by winds of
privileges and concessions covering the national economy GSIS is left with no alternative but to award to petitioner the
unfair and ill-informed criticism. 48
and patrimony, thereby exceeding the bid of a Filipino, there block of shares of MHC and to execute the necessary
is no question that the Filipino will have to be allowed to agreements and documents to effect the sale in accordance
match the bid of the foreign entity. And if the Filipino not only with the bidding guidelines and procedures but with Privatization of a business asset for purposes of enhancing
matches the bid of a foreign firm the award should go to the the Constitution as well. The refusal of respondent GSIS to its business viability and preventing further losses,
Filipino. It must be so if we are to give life and meaning to execute the corresponding documents with petitioner as regardless of the character of the asset, should not take
the Filipino First Policy provision of the 1987 Constitution. provided in the bidding rules after the latter has matched the precedence over non-material values. A commercial, nay
For, while this may neither be expressly stated nor bid of the Malaysian firm clearly constitutes grave abuse of even a budgetary, objective should not be pursued at the
contemplated in the bidding rules, the constitutional fiat is, discretion. expense of national pride and dignity. For the Constitution
omnipresent to be simply disregarded. To ignore it would be enshrines higher and nobler non-material values. Indeed, the
to sanction a perilous skirting of the basic law. Court will always defer to the Constitution in the proper
The Filipino First Policy is a product of Philippine
governance of a free society; after all, there is nothing so
nationalism. It is embodied in the 1987 Constitution not
sacrosanct in any economic policy as to draw itself beyond
This Court does not discount the apprehension that this merely to be used as a guideline for future legislation but
judicial review when the Constitution is involved. 49
policy may discourage foreign investors. But the Constitution primarily to be enforced; so must it be enforced. This Court
and laws of the Philippines are understood to be always as the ultimate guardian of the Constitution will never shun,
open to public scrutiny. These are given factors which under any reasonable circumstance, the duty of upholding Nationalism is inherent, in the very concept of the Philippines
investors must consider when venturing into business in a the majesty of the Constitution which it is tasked to defend. It being a democratic and republican state, with sovereignty
foreign jurisdiction. Any person therefore desiring to do is worth emphasizing that it is not the intention of this Court residing in the Filipino people and from whom all government
business in the Philippines or with any of its agencies or to impede and diminish, much less undermine, the influx of authority emanates. In nationalism, the happiness and
instrumentalities is presumed to know his rights and foreign investments. Far from it, the Court encourages and welfare of the people must be the goal. The nation-state can
obligations under the Constitution and the laws of the forum. welcomes more business opportunities but avowedly have no higher purpose. Any interpretation of any
sanctions the preference for Filipinos whenever such constitutional provision must adhere to such basic concept.
preference is ordained by the Constitution. The position of Protection of foreign investments, while laudible, is merely a
The argument of respondents that petitioner is now estopped
the Court on this matter could have not been more policy. It cannot override the demands of nationalism. 50
from questioning the sale to Renong Berhad since petitioner
appropriately articulated by Chief Justice Narvasa —
was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos The Manila Hotel or, for that matter, 51% of the MHC, is not
and foreigners alike were invited to the bidding. But As scrupulously as it has tried to just any commodity to be sold to the highest bidder solely for
foreigners may be awarded the sale only if no Filipino observe that it is not its function to the sake of privatization. We are not talking about an
qualifies, or if the qualified Filipino fails to match the highest substitute its judgment for that of the ordinary piece of property in a commercial district. We are
bid tendered by the foreign entity. In the case before us, legislature or the executive about the talking about a historic relic that has hosted many of the
while petitioner was already preferred at the inception of the wisdom and feasibility of legislation most important events in the short history of the Philippines
bidding because of the constitutional mandate, petitioner had economic in nature, the Supreme Court as a nation. We are talking about a hotel where heads of
not yet matched the bid offered by Renong Berhad. Thus it has not been spared criticism for states would prefer to be housed as a strong manifestation
did not have the right or personality then to compel decisions perceived as obstacles to of their desire to cloak the dignity of the highest state
respondent GSIS to accept its earlier bid. Rightly, only after it economic progress and development . . function to their official visits to the Philippines. Thus the
had matched the bid of the foreign firm and the apparent . in connection with a temporary Manila Hotel has played and continues to play a significant
disregard by respondent GSIS of petitioner's matching bid injunction issued by the Court's First role as an authentic repository of twentieth century Philippine
did the latter have a cause of action. Division against the sale of the Manila history and culture. In this sense, it has become truly a
Hotel to a Malaysian Firm and its reflection of the Filipino soul — a place with a history of
partner, certain statements were grandeur; a most historical setting that has played a part in
Besides, there is no time frame for invoking the constitutional
published in a major daily to the effect the shaping of a country. 51
safeguard unless perhaps the award has been finally made.
that injunction "again demonstrates that
To insist on selling the Manila Hotel to foreigners when there
the Philippine legal system can be a
is a Filipino group willing to match the bid of the foreign This Court cannot extract rhyme nor reason from the
major obstacle to doing business here.
group is to insist that government be treated as any other determined efforts of respondents to sell the historical
ordinary market player, and bound by its mistakes or gross landmark — this Grand Old Dame of hotels in Asia — to a
errors of judgment, regardless of the consequences to the Let it be stated for the record once again total stranger. For, indeed, the conveyance of this epic
Filipino people. The miscomprehension of the Constitution is that while it is no business of the Court exponent of the Filipino psyche to alien hands cannot be less
regrettable. Thus we would rather remedy the indiscretion to intervene in contracts of the kind than mephistophelian for it is, in whatever manner viewed, a
while there is still an opportunity to do so than let the referred to or set itself up as the judge of veritable alienation of a nation's soul for some pieces of
government develop the habit of forgetting that the whether they are viable or attainable, it foreign silver. And so we ask: What advantage, which cannot
is its bounden duty to make sure that be equally drawn from a qualified Filipino, can be gained by
the Filipinos Manila Hotel — and all that it stands for — is vs. x--------------------------------------------x
sold to a non-Filipino? How much of national pride will vanish THE GOVERNMENT OF THE REPUBLIC OF THE
if the nation's cultural heritage is entrusted to a foreign PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
G.R. No. 183962 October 14, 2008
entity? On the other hand, how much dignity will be represented by RODOLFO C. GARCIA, LEAH
preserved and realized if the national patrimony is safekept ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
in the hands of a qualified, zealous and well-meaning SULLIVAN and HERMOGENES ESPERON, in his ERNESTO M. MACEDA, JEJOMAR C. BINAY, and
Filipino? This is the plain and simple meaning of the Filipino capacity as the Presidential Adviser on Peace AQUILINO L. PIMENTEL III, petitioners,
First Policy provision of the Philippine Constitution. And this Process,respondents. vs.
Court, heeding the clarion call of the Constitution and THE GOVERNMENT OF THE REPUBLIC OF THE
accepting the duty of being the elderly watchman of the PHILIPPINES PEACE NEGOTIATING PANEL,
x--------------------------------------------x
nation, will continue to respect and protect the sanctity of the represented by its Chairman RODOLFO C. GARCIA, and
Constitution. the MORO ISLAMIC LIBERATION FRONT PEACE
G.R. No. 183893 October 14, 2008 NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION, THE CITY OF ILIGAN, duly represented by CITY MAYOR
COMMITTEE ON PRIVATIZATION and OFFICE OF THE LAWRENCE LLUCH CRUZ, petitioner, x--------------------------------------------x
GOVERNMENT CORPORATE COUNSEL are directed to vs.
CEASE and DESIST from selling 51% of the shares of the THE GOVERNMENT OF THE REPUBLIC OF THE
FRANKLIN M. DRILON and ADEL ABBAS
Manila Hotel Corporation to RENONG BERHAD, and to PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
TAMANO, petitioners-in-intervention.
ACCEPT the matching bid of petitioner MANILA PRINCE (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
HOTEL CORPORATION to purchase the subject 51% of the LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
shares of the Manila Hotel Corporation at P44.00 per share MARK RYAN SULLIVAN; GEN. HERMOGENES x--------------------------------------------x
and thereafter to execute the necessary clearances and to ESPERON, JR., in his capacity as the present and duly
do such other acts and deeds as may be necessary for appointed Presidential Adviser on the Peace Process;
purpose. and/or SEC. EDUARDO ERMITA, in his capacity as SEN. MANUEL A. ROXAS, petitioners-in-intervention.
Executive Secretary. respondents.
SO ORDERED. x--------------------------------------------x
x--------------------------------------------x
G.R. No. 183591 October 14, 2008 MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioners-in-
G.R. No. 183951 October 14, 2008
intervention,
THE PROVINCE OF NORTH COTABATO, duly
represented by GOVERNOR JESUS SACDALAN and/or THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own NORTE, as represented by HON. ROLANDO E. YEBES, x--------------------------------------------x
behalf, petitioners, in his capacity as Provincial Governor, HON. FRANCIS
vs. H. OLVIS, in his capacity as Vice-Governor and THE CITY OF ISABELA, BASILAN PROVINCE,
THE GOVERNMENT OF THE REPUBLIC OF THE Presiding Officer of the Sangguniang Panlalawigan, represented by MAYOR CHERRYLYN P. SANTOS-
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN HON. CECILIA JALOSJOS CARREON, Congresswoman, AKBAR,petitioners-in-intervention.
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. 1st Congressional District, HON. CESAR G. JALOSJOS,
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, Congressman, 3rd Congressional District, and Members
MARK RYAN SULLIVAN and/or GEN. HERMOGENES of the Sangguniang Panlalawigan of the Province of x--------------------------------------------x
ESPERON, JR., the latter in his capacity as the present Zamboanga del Norte, namely, HON. SETH FREDERICK
and duly-appointed Presidential Adviser on the Peace P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
Process (OPAPP) or the so-called Office of the ULDARICO M. MEJORADA II, HON. EDIONAR M. SUHARTO T. MANGUDADATU, in his capacity as
Presidential Adviser on the Peace Process, respondents. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. Provincial Governor and a resident of the Province of
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. Sultan Kudarat, petitioner-in-intervention.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
x--------------------------------------------x
EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. x-------------------------------------------x
G.R. No. 183752 October 14, 2008 TORRINO, petitioners,
vs. RUY ELIAS LOPEZ, for and in his own behalf and on
THE GOVERNMENT OF THE REPUBLIC OF THE behalf of Indigenous Peoples in Mindanao Not
CITY GOVERNMENT OF ZAMBOANGA, as represented
PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as Belonging to the MILF, petitioner-in-intervention.
by HON. CELSO L. LOBREGAT, City Mayor of
represented by HON. RODOLFO C. GARCIA and HON.
Zamboanga, and in his personal capacity as resident of
HERMOGENES ESPERON, in his capacity as the
the City of Zamboanga, Rep. MA. ISABELLE G. x--------------------------------------------x
Presidential Adviser of Peace Process, respondents.
CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. The MILF is a rebel group which was established in March General Framework for the Resumption of Peace Talks
AWAT, JOSELITO C. ALISUAG and RICHALEX G. 1984 when, under the leadership of the late Salamat Between the GRP and the MILF. The MILF thereafter
JAGMIS, as citizens and residents of Hashim, it splintered from the Moro National Liberation Front suspended all its military actions.5
Palawan, petitioners-in-intervention. (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of
Formal peace talks between the parties were held in Tripoli,
the MNLF away from an Islamic basis towards Marxist-
x--------------------------------------------x Libya from June 20-22, 2001, the outcome of which was the
Maoist orientations.1
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
MARINO RIDAO and KISIN BUXANI, petitioners-in-
The signing of the MOA-AD between the GRP and the MILF following aspects of the
intervention.
was not to materialize, however, for upon motion of negotiation: Security Aspect, Rehabilitation Aspect,
petitioners, specifically those who filed their cases before the and Ancestral Domain Aspect. With regard to the Ancestral
x--------------------------------------------x scheduled signing of the MOA-AD, this Court issued a Domain Aspect, the parties in Tripoli Agreement 2001 simply
Temporary Restraining Order enjoining the GRP from agreed "that the same be discussed further by the Parties in
signing the same. their next meeting."
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
The MOA-AD was preceded by a long process of negotiation A second round of peace talks was held in Cyberjaya,
and the concluding of several prior agreements between the Malaysia on August 5-7, 2001 which ended with the signing
x--------------------------------------------x two parties beginning in 1996, when the GRP-MILF peace of the Implementing Guidelines on the Security Aspect of the
negotiations began. On July 18, 1997, the GRP and MILF Tripoli Agreement 2001 leading to a ceasefire status
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & Peace Panels signed the Agreement on General Cessation between the parties. This was followed by the Implementing
DEVELOPMENT (MMMPD), respondent-in-intervention. of Hostilities. The following year, they signed the General Guidelines on the Humanitarian Rehabilitation and
Framework of Agreement of Intent on August 27, 1998. Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia.
x--------------------------------------------x Nonetheless, there were many incidence of violence
The Solicitor General, who represents respondents,
between government forces and the MILF from 2002 to
summarizes the MOA-AD by stating that the same
DECISION 2003.
contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human
CARPIO MORALES, J.: rights, negotiate with sincerity in the resolution and pacific Meanwhile, then MILF Chairman Salamat Hashim passed
settlement of the conflict, and refrain from the use of threat away on July 13, 2003 and he was replaced by Al Haj
or force to attain undue advantage while the peace Murad, who was then the chief peace negotiator of the MILF.
Subject of these consolidated cases is the extent of the negotiations on the substantive agenda are on-going.2 Murad's position as chief peace negotiator was taken over by
powers of the President in pursuing the peace Mohagher Iqbal.6
process.While the facts surrounding this controversy center
on the armed conflict in Mindanao between the government Early on, however, it was evident that there was not going to
and the Moro Islamic Liberation Front (MILF), the legal issue be any smooth sailing in the GRP-MILF peace process. In 2005, several exploratory talks were held between the
involved has a bearing on all areas in the country where Towards the end of 1999 up to early 2000, the MILF parties in Kuala Lumpur, eventually leading to the crafting of
there has been a long-standing armed conflict. Yet again, the attacked a number of municipalities in Central Mindanao the draft MOA-AD in its final form, which, as mentioned, was
Court is tasked to perform a delicate balancing act. It must and, in March 2000, it took control of the town hall of set to be signed last August 5, 2008.
uncompromisingly delineate the bounds within which the Kauswagan, Lanao del Norte.3 In response, then President
President may lawfully exercise her discretion, but it must do Joseph Estrada declared and carried out an "all-out-war"
II. STATEMENT OF THE PROCEEDINGS
so in strict adherence to the Constitution, lest its ruling against the MILF.
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to Before the Court is what is perhaps the most contentious
When President Gloria Macapagal-Arroyo assumed office,
pursue the peace process effectively. "consensus" ever embodied in an instrument - the MOA-AD
the military offensive against the MILF was suspended and
which is assailed principally by the present petitions bearing
the government sought a resumption of the peace talks. The
docket numbers 183591, 183752, 183893, 183951 and
I. FACTUAL ANTECEDENTS OF THE PETITIONS MILF, according to a leading MILF member, initially
183962.
responded with deep reservation, but when President Arroyo
asked the Government of Malaysia through Prime Minister
On August 5, 2008, the Government of the Republic of the Mahathir Mohammad to help convince the MILF to return to Commonly impleaded as respondents are the GRP Peace
Philippines (GRP) and the MILF, through the Chairpersons the negotiating table, the MILF convened its Central Panel on Ancestral Domain7 and the Presidential Adviser on
of their respective peace negotiating panels, were scheduled Committee to seriously discuss the matter and, eventually, the Peace Process (PAPP) Hermogenes Esperon, Jr.
to sign a Memorandum of Agreement on the Ancestral decided to meet with the GRP.4
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. On July 23, 2008, the Province of North Cotabato8 and Vice-
The parties met in Kuala Lumpur on March 24, 2001, with Governor Emmanuel Piñol filed a petition, docketed as G.R.
the talks being facilitated by the Malaysian government, the No. 183591, for Mandamus and Prohibition with Prayer for
parties signing on the same date the Agreement on the the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on Various parties moved to intervene and were granted leave and initiated the MOA vis-à-vis ISSUES Nos. 4
matters of public concern, petitioners seek to compel of court to file their petitions-/comments-in-intervention. and 5;
respondents to disclose and furnish them the complete and Petitioners-in-Intervention include Senator Manuel A. Roxas,
official copies of the MOA-AD including its attachments, and former Senate President Franklin Drilon and Atty. Adel
4. Whether there is a violation of the people's right
to prohibit the slated signing of the MOA-AD, pending the Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
to information on matters of public concern (1987
disclosure of the contents of the MOA-AD and the holding of Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Constitution, Article III, Sec. 7) under a state policy
a public consultation thereon. Supplementarily, petitioners Mangudadatu, the Municipality of Linamon in Lanao del
of full disclosure of all its transactions involving
pray that the MOA-AD be declared unconstitutional.10 Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
public interest (1987 Constitution, Article II, Sec.
tribe, Sangguniang Panlungsod member Marino Ridao and
28) including public consultation under Republic
businessman Kisin Buxani, both of Cotabato City; and
This initial petition was followed by another one, docketed Act No. 7160 (LOCAL GOVERNMENT CODE OF
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito
as G.R. No. 183752, also for Mandamus and 1991)[;]
Alisuag, Richalex Jagmis, all of Palawan City. The Muslim
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso
Legal Assistance Foundation, Inc. (Muslaf) and the Muslim
Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio
Multi-Sectoral Movement for Peace and Development If it is in the affirmative, whether prohibition under
Fabian who likewise pray for similar injunctive reliefs.
(MMMPD) filed their respective Comments-in-Intervention. Rule 65 of the 1997 Rules of Civil Procedure is an
Petitioners herein moreover pray that the City of Zamboanga
appropriate remedy;
be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the By subsequent Resolutions, the Court ordered the
MOA-AD be declared null and void. consolidation of the petitions. Respondents filed Comments 5. Whether by signing the MOA, the Government
on the petitions, while some of petitioners submitted their of the Republic of the Philippines would be
respective Replies. BINDING itself
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from Respondents, by Manifestation and Motion of August 19, a) to create and recognize the
formally signing the MOA-AD.13 The Court also required the 2008, stated that the Executive Department shall thoroughly Bangsamoro Juridical Entity (BJE) as a
Solicitor General to submit to the Court and petitioners the review the MOA-AD and pursue further negotiations to separate state, or a juridical, territorial or
official copy of the final draft of the MOA-AD,14 to which she address the issues hurled against it, and thus moved to political subdivision not recognized by
complied.15 dismiss the cases. In the succeeding exchange of pleadings, law;
respondents' motion was met with vigorous opposition from
petitioners.
Meanwhile, the City of Iligan16 filed a petition for Injunction b) to revise or amend the Constitution
and/or Declaratory Relief, docketed as G.R. No. 183893, and existing laws to conform to the
praying that respondents be enjoined from signing the MOA- The cases were heard on oral argument on August 15, 22 MOA;
AD or, if the same had already been signed, from and 29, 2008 that tackled the following principal issues:
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead c) to concede to or recognize the claim
1. Whether the petitions have become moot and of the Moro Islamic Liberation Front for
Executive Secretary Eduardo Ermita as respondent.
academic ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS
The Province of Zamboanga del Norte,17 Governor Rolando PEOPLES RIGHTS ACT OF 1997),
(i) insofar as the mandamus aspect is
Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos- particularly Section 3(g) & Chapter VII
concerned, in view of the disclosure of
Carreon, Rep. Cesar Jalosjos, and the members 18 of the (DELINEATION, RECOGNITION OF
official copies of the final draft of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on ANCESTRAL DOMAINS)[;]
Memorandum of Agreement (MOA); and
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without If in the affirmative, whether the Executive Branch
(ii) insofar as the prohibition aspect
has the authority to so bind the Government of the
operative effect, and that respondents be enjoined from involving the Local Government Units is
executing the MOA-AD. Republic of the Philippines;
concerned, if it is considered that
consultation has become fait
accompli with the finalization of the draft; 6. Whether the inclusion/exclusion of the Province
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for Prohibition, 20docketed of North Cotabato, Cities of Zamboanga, Iligan
as G.R. No. 183962, praying for a judgment prohibiting and and Isabela, and the Municipality of Linamon,
2. Whether the constitutionality and the legality of
Lanao del Norte in/from the areas covered by the
permanently enjoining respondents from formally signing and the MOA is ripe for adjudication;
executing the MOA-AD and or any other agreement derived projected Bangsamoro Homeland is a justiciable
therefrom or similar thereto, and nullifying the MOA-AD for question; and
3. Whether respondent Government of the
being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Republic of the Philippines Peace Panel
7. Whether desistance from signing the MOA
Negotiating Panel represented by its Chairman Mohagher committed grave abuse of discretion amounting to
derogates any prior valid commitments of the
lack or excess of jurisdiction when it negotiated
Iqbal. Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their Muslim territories. For instance, areas like dar-ul- The Bangsamoro people are acknowledged as having
respective Memoranda. Most of the parties submitted their mua'hada (land of compact) and dar-ul-sulh (land of treaty) the right to self-governance, which right is said to be rooted
memoranda on time. referred to countries which, though under a secular regime, on ancestral territoriality exercised originally under the
maintained peaceful and cooperative relations with Muslim suzerain authority of their sultanates and the Pat a
States, having been bound to each other by treaty or Pangampong ku Ranaw. The sultanates were described as
III. OVERVIEW OF THE MOA-AD
agreement. Dar-ul-aman (land of order), on the other hand, states or "karajaan/kadatuan" resembling a body politic
referred to countries which, though not bound by treaty with endowed with all the elements of a nation-state in the
As a necessary backdrop to the consideration of the Muslim States, maintained freedom of religion for Muslims.28 modern sense.34
objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the
It thus appears that the "compact rights entrenchment" The MOA-AD thus grounds the right to self-governance of
two comments-in-intervention in favor of the MOA-AD, the
emanating from the regime of dar-ul-mua'hada and dar-ul- the Bangsamoro people on the past suzerain authority of the
Court takes an overview of the MOA.
sulh simply refers to all other agreements between the MILF sultanates. As gathered, the territory defined as the
and the Philippine government - the Philippines being the Bangsamoro homeland was ruled by several sultanates and,
The MOA-AD identifies the Parties to it as the GRP and the land of compact and peace agreement - that partake of the specifically in the case of the Maranao, by the Pat a
MILF. nature of a treaty device, "treaty" being broadly defined as Pangampong ku Ranaw, a confederation of independent
"any solemn agreement in writing that sets out principalities (pangampong) each ruled by datus and sultans,
understandings, obligations, and benefits for both parties none of whom was supreme over the others.35
Under the heading "Terms of Reference" (TOR), the MOA- which provides for a framework that elaborates the principles
AD includes not only four earlier agreements between the declared in the [MOA-AD]."29
GRP and MILF, but also two agreements between the GRP The MOA-AD goes on to describe the Bangsamoro people
and the MNLF: the 1976 Tripoli Agreement, and the Final as "the ‘First Nation' with defined territory and with a system
Peace Agreement on the Implementation of the 1976 Tripoli The MOA-AD states that the Parties "HAVE AGREED AND of government having entered into treaties of amity and
Agreement, signed on September 2, 1996 during the ACKNOWLEDGED AS FOLLOWS," and starts with its main commerce with foreign nations."
administration of President Fidel Ramos. body.
The term "First Nation" is of Canadian origin referring to the
The MOA-AD also identifies as TOR two local statutes - the The main body of the MOA-AD is divided into four indigenous peoples of that territory, particularly those known
organic act for the Autonomous Region in Muslim Mindanao strands, namely, Concepts and Principles, Territory, as Indians. In Canada, each of these indigenous peoples is
(ARMM)25 and the Indigenous Peoples Rights Act Resources, and Governance. equally entitled to be called "First Nation," hence, all of them
(IPRA),26 and several international law instruments - the ILO are usually described collectively by the plural "First
Convention No. 169 Concerning Indigenous and Tribal Nations."36 To that extent, the MOA-AD, by identifying the
A. CONCEPTS AND PRINCIPLES
Peoples in Independent Countries in relation to the UN Bangsamoro people as "the First Nation" - suggesting its
Declaration on the Rights of the Indigenous Peoples, and the exclusive entitlement to that designation - departs from the
UN Charter, among others. This strand begins with the statement that it is "the birthright Canadian usage of the term.
of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as ‘Bangsamoros.'" It
The MOA-AD includes as a final TOR the generic category The MOA-AD then mentions for the first time the
defines "Bangsamoro people" as the natives or original
of "compact rights entrenchment emanating from the regime "Bangsamoro Juridical Entity" (BJE) to which it grants the
inhabitants of Mindanao and its adjacent islands including
of dar-ul-mua'hada (or territory under compact) and dar-ul- authority and jurisdiction over the Ancestral Domain and
Palawan and the Sulu archipelago at the time of conquest or
sulh (or territory under peace agreement) that partakes the Ancestral Lands of the Bangsamoro.37
colonization, and their descendants whether mixed or of full
nature of a treaty device."
blood, including their spouses.30
B. TERRITORY
During the height of the Muslim Empire, early Muslim jurists
Thus, the concept of "Bangsamoro," as defined in this strand
tended to see the world through a simple dichotomy: there
of the MOA-AD, includes not only "Moros" as traditionally The territory of the Bangsamoro homeland is described as
was the dar-ul-Islam (the Abode of Islam) and dar-ul-
understood even by Muslims,31 but all indigenous peoples of the land mass as well as the maritime, terrestrial, fluvial and
harb (the Abode of War). The first referred to those lands
Mindanao and its adjacent islands. The MOA-AD adds that alluvial domains, including the aerial domain and the
where Islamic laws held sway, while the second denoted
the freedom of choice of indigenous peoples shall be atmospheric space above it, embracing the Mindanao-Sulu-
those lands where Muslims were persecuted or where
respected. What this freedom of choice consists in has not Palawan geographic region.38
Muslim laws were outlawed or ineffective.27 This way of
been specifically defined.
viewing the world, however, became more complex through
the centuries as the Islamic world became part of the More specifically, the core of the BJE is defined as the
international community of nations. The MOA-AD proceeds to refer to the "Bangsamoro present geographic area of the ARMM - thus constituting the
homeland," the ownership of which is vested exclusively in following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
the Bangsamoro people by virtue of their prior rights of Tawi, Basilan, and Marawi City. Significantly, this core
As Muslim States entered into treaties with their neighbors,
occupation.32 Both parties to the MOA-AD acknowledge also includes certain municipalities of Lanao del Norte that
even with distant States and inter-governmental
that ancestral domain does not form part of the public voted for inclusion in the ARMM in the 2001 plebiscite.39
organizations, the classical division of the world into dar-ul-
domain.33
Islam and dar-ul-harb eventually lost its meaning. New terms
were drawn up to describe novel ways of perceiving non-
Outside of this core, the BJE is to cover other provinces, environmental protection and equitable sharing of incomes defined powers and functions in the Comprehensive
cities, municipalities and barangays, which are grouped into and revenues involving the bodies of water adjacent to or Compact.
two categories, Category A and Category B. Each of these between the islands forming part of the ancestral domain. 47
areas is to be subjected to a plebiscite to be held on different
The MOA-AD provides that its provisions requiring
dates, years apart from each other. Thus, Category A areas
With regard to the right of exploring for, producing, and "amendments to the existing legal framework" shall take
are to be subjected to a plebiscite not later than twelve (12)
obtaining all potential sources of energy, petroleum, fossil effect upon signing of the Comprehensive Compact and
months following the signing of the MOA-AD.40 Category B
fuel, mineral oil and natural gas, the jurisdiction and control upon effecting the aforesaid amendments, with due regard to
areas, also called "Special Intervention Areas," on the other
thereon is to be vested in the BJE "as the party having the non-derogation of prior agreements and within the
hand, are to be subjected to a plebiscite twenty-five (25)
control within its territorial jurisdiction." This right carries stipulated timeframe to be contained in the Comprehensive
years from the signing of a separate agreement - the
the proviso that, "in times of national emergency, when Compact. As will be discussed later, much of the present
Comprehensive Compact.41
public interest so requires," the Central Government may, for controversy hangs on the legality of this provision.
a fixed period and under reasonable terms as may be
The Parties to the MOA-AD stipulate that the BJE shall have agreed upon by both Parties, assume or direct the operation
The BJE is granted the power to build, develop and maintain
jurisdiction over all natural resources within its of such resources.48
its own institutions inclusive of civil service, electoral,
"internalwaters," defined as extending fifteen (15) kilometers
financial and banking, education, legislation, legal,
from the coastline of the BJE area;42 that the BJE shall also
The sharing between the Central Government and the BJE economic, police and internal security force, judicial system
have "territorial waters," which shall stretch beyond the BJE
of total production pertaining to natural resources is to be and correctional institutions, the details of which shall be
internal waters up to the baselines of the Republic of the
75:25 in favor of the BJE.49 discussed in the negotiation of the comprehensive compact.
Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with The MOA-AD provides that legitimate grievances of the As stated early on, the MOA-AD was set to be signed on
RP) shall exercise joint jurisdiction, authority and Bangsamoro people arising from any unjust dispossession of August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
management over all natural resources.43 Notably, the their territorial and proprietary rights, customary land Chairpersons of the Peace Negotiating Panels of the GRP
jurisdiction over the internal waters is not similarly described tenures, or their marginalization shall be acknowledged. and the MILF, respectively. Notably, the penultimate
as "joint." Whenever restoration is no longer possible, reparation is to paragraph of the MOA-AD identifies the signatories as "the
be in such form as mutually determined by the Parties.50 representatives of the Parties," meaning the GRP and MILF
themselves, and not merely of the negotiating panels.53 In
The MOA-AD further provides for the sharing of minerals on
addition, the signature page of the MOA-AD states that it is
the territorial waters between the Central Government and The BJE may modify or cancel the forest concessions,
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special
the BJE, in favor of the latter, through production sharing and timber licenses, contracts or agreements, mining
Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
economic cooperation agreement.44 The activities which the concessions, Mineral Production and Sharing Agreements
Ambassador Sayed Elmasry, Adviser to Organization of the
Parties are allowed to conduct on the territorial waters are (MPSA), Industrial Forest Management Agreements (IFMA),
Islamic Conference (OIC) Secretary General and Special
enumerated, among which are the exploration and utilization and other land tenure instruments granted by the Philippine
Envoy for Peace Process in Southern Philippines, and
of natural resources, regulation of shipping and fishing Government, including those issued by the present ARMM.51
SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
activities, and the enforcement of police and safety
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
measures.45 There is no similar provision on the sharing of
D. GOVERNANCE Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
minerals and allowed activities with respect to
whom were scheduled to sign the Agreement last August 5,
the internal waters of the BJE.
2008.
The MOA-AD binds the Parties to invite a multinational third-
C. RESOURCES party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody Annexed to the MOA-AD are two documents containing the
the "details for the effective enforcement" and "the respective lists cum maps of the provinces, municipalities,
The MOA-AD states that the BJE is free to enter into any mechanisms and modalities for the actual implementation" of and barangays under Categories A and B earlier mentioned
economic cooperation and trade relations with foreign the MOA-AD. The MOA-AD explicitly provides that the in the discussion on the strand on TERRITORY.
countries and shall have the option to establish trade participation of the third party shall not in any way affect the
missions in those countries. Such relationships and status of the relationship between the Central Government
IV. PROCEDURAL ISSUES
understandings, however, are not to include aggression and the BJE.52
against the GRP. The BJE may also enter into environmental
cooperation agreements.46 A. RIPENESS
The "associative" relationship
between the Central Government
The external defense of the BJE is to remain the duty and and the BJE The power of judicial review is limited to actual cases or
obligation of the Central Government. The Central controversies.54 Courts decline to issue advisory opinions or
Government is also bound to "take necessary steps to to resolve hypothetical or feigned problems, or mere
The MOA-AD describes the relationship of the Central
ensure the BJE's participation in international meetings and academic questions.55 The limitation of the power of judicial
events" like those of the ASEAN and the specialized Government and the BJE as "associative," characterized by
review to actual cases and controversies defines the role
agencies of the UN. The BJE is to be entitled to participate in shared authority and responsibility. And it states that the
assigned to the judiciary in a tripartite allocation of power, to
structure of governance is to be based on executive,
Philippine official missions and delegations for the assure that the courts will not intrude into areas committed to
legislative, judicial, and administrative institutions with
negotiation of border agreements or protocols for the other branches of government.56
An actual case or controversy involves a conflict of legal The Solicitor General cites63 the following provisions of the Concrete acts under the MOA-AD are not necessary to
rights, an assertion of opposite legal claims, susceptible of MOA-AD: render the present controversy ripe. In Pimentel, Jr. v.
judicial resolution as distinguished from a hypothetical or Aguirre,65 this Court held:
abstract difference or dispute. There must be a contrariety of
TERRITORY
legal rights that can be interpreted and enforced on the basis
x x x [B]y the mere enactment of the questioned
of existing law and jurisprudence.57 The Court can decide the
law or the approval of the challenged action, the
constitutionality of an act or treaty only when a proper case xxxx
dispute is said to have ripened into a judicial
between opposing parties is submitted for judicial
controversy even without any other overt act.
determination.58
2. Toward this end, the Parties enter into the Indeed, even a singular violation of the
following stipulations: Constitution and/or the law is enough to awaken
Related to the requirement of an actual case or controversy judicial duty.
is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct xxxx
xxxx
adverse effect on the individual challenging it.59 For a case to
be considered ripe for adjudication, it is a prerequisite that d. Without derogating from the requirements of
something had then been accomplished or performed by prior agreements, the Government stipulates to By the same token, when an act of the President,
either branch before a court may come into the picture,60 and conduct and deliver, using all possible legal who in our constitutional scheme is a coequal of
the petitioner must allege the existence of an immediate or measures, within twelve (12) months following the Congress, is seriously alleged to have infringed
threatened injury to itself as a result of the challenged signing of the MOA-AD, a plebiscite covering the the Constitution and the laws x x x settling the
action.61 He must show that he has sustained or is areas as enumerated in the list and depicted in the dispute becomes the duty and the responsibility of
immediately in danger of sustaining some direct injury as a map as Category A attached herein (the "Annex"). the courts.66
result of the act complained of.62 The Annex constitutes an integral part of this
framework agreement. Toward this end, the
In Santa Fe Independent School District v. Doe,67 the United
The Solicitor General argues that there is no justiciable Parties shall endeavor to complete the
States Supreme Court held that the challenge to the
controversy that is ripe for judicial review in the present negotiations and resolve all outstanding issues on
constitutionality of the school's policy allowing student-led
the Comprehensive Compact within fifteen (15)
petitions, reasoning that prayers and speeches before games was ripe for
months from the signing of the MOA-AD.
adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as
The unsigned MOA-AD is simply a list of
xxxx unconstitutional on its face.68
consensus points subject to further negotiations
and legislative enactments as well as
constitutional processes aimed at attaining a final GOVERNANCE That the law or act in question is not yet effective does not
peaceful agreement. Simply put, the MOA-AD negate ripeness. For example, in New York v. United
remains to be a proposal that does not States,69 decided in 1992, the United States Supreme Court
automatically create legally demandable rights and xxxx held that the action by the State of New York challenging the
obligations until the list of operative acts required provisions of the Low-Level Radioactive Waste Policy Act
have been duly complied with. x x x 7. The Parties agree that mechanisms and was ripe for adjudication even if the questioned provision
modalities for the actual implementation of this was not to take effect until January 1, 1996, because the
MOA-AD shall be spelt out in the Comprehensive parties agreed that New York had to take immediate action
xxxx
Compact to mutually take such steps to enable it to avoid the provision's consequences.70
to occur effectively.
In the cases at bar, it is respectfully submitted that
The present petitions pray for Certiorari,71 Prohibition, and
this Honorable Court has no authority to pass
Any provisions of the MOA-AD requiring Mandamus. Certiorari and Prohibition are remedies granted
upon issues based on hypothetical or feigned
amendments to the existing legal framework shall by law when any tribunal, board or officer has acted, in the
constitutional problems or interests with no
come into force upon the signing of a case of certiorari, or is proceeding, in the case of prohibition,
concrete bases. Considering
Comprehensive Compact and upon effecting the without or in excess of its jurisdiction or with grave abuse of
the preliminary character of the MOA-AD, there
necessary changes to the legal framework with discretion amounting to lack or excess of
are no concrete acts that could possibly violate
due regard to non-derogation of prior jurisdiction.72 Mandamus is a remedy granted by law when
petitioners' and intervenors' rights since the acts
agreements and within the stipulated timeframe to any tribunal, corporation, board, officer or person unlawfully
complained of are mere contemplated
be contained in the Comprehensive neglects the performance of an act which the law specifically
steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' Compact.64 (Underscoring supplied) enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a
perceived injury, if at all, is merely imaginary and
right or office to which such other is entitled. 73 Certiorari,
illusory apart from being unfounded and based on The Solicitor General's arguments fail to persuade. Mandamus and Prohibition are appropriate remedies to raise
mere conjectures. (Underscoring supplied)
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by privilege to which he is lawfully entitled or that he is about to In the petitions at bar, petitioners Province of North
Executive Order No. 3 (E.O. No. 3), issued on February 28, be subjected to some burdens or penalties by reason of the Cotabato (G.R. No. 183591) Province of Zamboanga del
2001.75 The said executive order requires that "[t]he statute or act complained of.80 When the issue concerns a Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
government's policy framework for peace, including the public right, it is sufficient that the petitioner is a citizen and and City of Zamboanga (G.R. No. 183752) and petitioners-
systematic approach and the administrative structure for has an interest in the execution of the laws.81 in-intervention Province of Sultan Kudarat, City of
carrying out the comprehensive peace process x x x be Isabela and Municipality of Linamon have locus standi in
governed by this Executive Order."76 view of the direct and substantial injury that they, as LGUs,
For a taxpayer, one is allowed to sue where there is an
would suffer as their territories, whether in whole or in part,
assertion that public funds are illegally disbursed or deflected
are to be included in the intended domain of the BJE. These
The present petitions allege that respondents GRP Panel to an illegal purpose, or that there is a wastage of public
petitioners allege that they did not vote for their inclusion in
and PAPP Esperon drafted the terms of the MOA-AD without funds through the enforcement of an invalid or
the ARMM which would be expanded to form the BJE
consulting the local government units or communities unconstitutional law.82 The Court retains discretion whether
territory. Petitioners' legal standing is thus beyond doubt.
affected, nor informing them of the proceedings. As will be or not to allow a taxpayer's suit.83
discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
In the case of a legislator or member of Congress, an act of
under E.O. No. 3. Binay and Aquilino Pimentel III would have no standing as
the Executive that injures the institution of Congress causes
citizens and taxpayers for their failure to specify that they
a derivative but nonetheless substantial injury that can be
would be denied some right or privilege or there would be
Furthermore, the petitions allege that the provisions of the questioned by legislators. A member of the House of
wastage of public funds. The fact that they are a former
MOA-AD violate the Constitution. The MOA-AD provides that Representatives has standing to maintain inviolate the
Senator, an incumbent mayor of Makati City, and a resident
"any provisions of the MOA-AD requiring amendments to the prerogatives, powers and privileges vested by the
of Cagayan de Oro, respectively, is of no consequence.
existing legal framework shall come into force upon the Constitution in his office.84
Considering their invocation of the transcendental
signing of a Comprehensive Compact and upon effecting the
importance of the issues at hand, however, the Court grants
necessary changes to the legal framework," implying an
An organization may be granted standing to assert the rights them standing.
amendment of the Constitution to accommodate the MOA-
of its members,85 but the mere invocation by the Integrated
AD. This stipulation, in effect, guaranteed to the MILF the
Bar of the Philippines or any member of the legal
amendment of the Constitution. Such act constitutes another Intervenors Franklin Drilon and Adel Tamano, in alleging
profession of the duty to preserve the rule of law does not
violation of its authority. Again, these points will be discussed their standing as taxpayers, assert that government funds
suffice to clothe it with standing.86
in more detail later. would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On
As regards a local government unit (LGU), it can seek relief that score alone, they can be given legal standing. Their
As the petitions allege acts or omissions on the part of
in order to protect or vindicate an interest of its own, and of allegation that the issues involved in these petitions are of
respondent that exceed their authority, by violating their
the other LGUs.87 "undeniable transcendental importance" clothes them with
duties under E.O. No. 3 and the provisions of the
added basis for their personality to intervene in these
Constitution and statutes, the petitions make a prima
petitions.
facie case for Certiorari, Prohibition, and Mandamus, and an Intervenors, meanwhile, may be given legal standing upon
actual case or controversy ripe for adjudication exists. When showing of facts that satisfy the requirements of the law
an act of a branch of government is seriously alleged to authorizing intervention,88 such as a legal interest in the With regard to Senator Manuel Roxas, his standing is
have infringed the Constitution, it becomes not only the matter in litigation, or in the success of either of the parties. premised on his being a member of the Senate and a citizen
right but in fact the duty of the judiciary to settle the to enforce compliance by respondents of the public's
dispute.77 constitutional right to be informed of the MOA-AD, as well as
In any case, the Court has discretion to relax the procedural on a genuine legal interest in the matter in litigation, or in the
technicality on locus standi, given the liberal attitude it has
success or failure of either of the parties. He thus possesses
B. LOCUS STANDI exercised, highlighted in the case of David v. Macapagal- the requisite standing as an intervenor.
Arroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
For a party to have locus standi, one must allege "such a
public interest or of transcendental importance deserving the With respect to Intervenors Ruy Elias Lopez, as a former
personal stake in the outcome of the controversy as to
attention of the Court in view of their seriousness, novelty congressman of the 3rd district of Davao City, a taxpayer and
assure that concrete adverseness which sharpens the
and weight as precedents.90 The Court's forbearing stance a member of the Bagobo tribe; Carlo B. Gomez, et al., as
presentation of issues upon which the court so largely
on locus standi on issues involving constitutional issues has members of the IBP Palawan chapter, citizens and
depends for illumination of difficult constitutional
for its purpose the protection of fundamental rights. taxpayers; Marino Ridao, as taxpayer, resident and member
questions."78
of the Sangguniang Panlungsod of Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege any proper legal
In not a few cases, the Court, in keeping with its duty under interest in the present petitions. Just the same, the Court
Because constitutional cases are often public actions in
the Constitution to determine whether the other branches of exercises its discretion to relax the procedural technicality
which the relief sought is likely to affect other persons, a
government have kept themselves within the limits of the
preliminary question frequently arises as to this interest in on locus standi given the paramount public interest in the
Constitution and the laws and have not abused the discretion
the constitutional question raised.79 issues at hand.
given them, has brushed aside technical rules of
procedure.91
When suing as a citizen, the person complaining must allege Intervening respondents Muslim Multi-Sectoral Movement
that he has been or is about to be denied some right or for Peace and Development, an advocacy group for justice
and the attainment of peace and prosperity in Muslim Contrary then to the asseverations of respondents, the non- The MOA-AD is part of a series of agreements
Mindanao; and Muslim Legal Assistance Foundation signing of the MOA-AD and the eventual dissolution of the
Inc., a non-government organization of Muslim lawyers, GRP Peace Panel did not moot the present petitions. It
In the present controversy, the MOA-AD is a significant
allege that they stand to be benefited or prejudiced, as the bears emphasis that the signing of the MOA-AD did not push
part of a series of agreements necessary to carry out the
case may be, in the resolution of the petitions concerning the through due to the Court's issuance of a Temporary
Tripoli Agreement 2001. The MOA-AD which dwells on
MOA-AD, and prays for the denial of the petitions on the Restraining Order.
the Ancestral Domain Aspect of said Tripoli Agreement is the
grounds therein stated. Such legal interest suffices to clothe
third such component to be undertaken following the
them with standing.
Contrary too to respondents' position, the MOA-AD cannot implementation of the Security Aspect in August 2001 and
be considered a mere "list of consensus points," especially the Humanitarian, Rehabilitation and Development Aspect in
B. MOOTNESS given its nomenclature, the need to have it signed or May 2002.
initialed by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of these
Respondents insist that the present petitions have been Accordingly, even if the Executive Secretary, in his
"consensus points," foremost of which is the creation of the
rendered moot with the satisfaction of all the reliefs prayed Memorandum of August 28, 2008 to the Solicitor General,
BJE.
for by petitioners and the subsequent pronouncement of the has stated that "no matter what the Supreme Court ultimately
Executive Secretary that "[n]o matter what the Supreme decides[,] the government will not sign the MOA[-
Court ultimately decides[,] the government will not sign the In fact, as what will, in the main, be discussed, there is AD]," mootness will not set in in light of the terms of the
MOA."92 a commitment on the part of respondents to amend and Tripoli Agreement 2001.
effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take
In lending credence to this policy decision, the Solicitor Need to formulate principles-guidelines
effect. Consequently, the present petitions are not confined
General points out that the President had already disbanded
to the terms and provisions of the MOA-AD, but to other on-
the GRP Peace Panel.93
going and future negotiations and agreements necessary Surely, the present MOA-AD can be renegotiated or another
for its realization. The petitions have not, therefore, been one will be drawn up to carry out the Ancestral Domain
In David v. Macapagal-Arroyo,94 this Court held that the rendered moot and academic simply by the public disclosure Aspect of the Tripoli Agreement 2001, in another or in any
"moot and academic" principle not being a magical formula of the MOA-AD,102 the manifestation that it will not be signed form, which could contain similar or significantly drastic
that automatically dissuades courts in resolving a case, it will as well as the disbanding of the GRP Panel not withstanding. provisions. While the Court notes the word of the Executive
decide cases, otherwise moot and academic, if it finds that Secretary that the government "is committed to securing an
(a) there is a grave violation of the Constitution;95 (b) the agreement that is both constitutional and equitable because
Petitions are imbued with paramount public interest
situation is of exceptional character and paramount public that is the only way that long-lasting peace can be assured,"
interest is involved;96 (c) the constitutional issue raised it is minded to render a decision on the merits in the present
requires formulation of controlling principles to guide the There is no gainsaying that the petitions are imbued with petitions to formulate controlling principles to guide the
bench, the bar, and the public;97 and (d) the case is capable paramount public interest, involving a significant part of the bench, the bar, the public and, most especially, the
of repetition yet evading review.98 country's territory and the wide-ranging political modifications government in negotiating with the MILF regarding
of affected LGUs. The assertion that the MOA-AD is Ancestral Domain.
subject to further legal enactments including possible
Another exclusionary circumstance that may be considered
Constitutional amendments more than ever provides
is where there is a voluntary cessation of the activity Respondents invite the Court's attention to the separate
impetus for the Court to formulate controlling principles
complained of by the defendant or doer. Thus, once a suit is opinion of then Chief Justice Artemio Panganiban
to guide the bench, the bar, the public and, in this case,
filed and the doer voluntarily ceases the challenged conduct, in Sanlakas v. Reyes104 in which he stated that the doctrine
the government and its negotiating entity.
it does not automatically deprive the tribunal of power to hear of "capable of repetition yet evading review" can override
and determine the case and does not render the case moot mootness, "provided the party raising it in a proper case has
especially when the plaintiff seeks damages or prays for Respondents cite Suplico v. NEDA, et al.103 where the Court been and/or continue to be prejudiced or damaged as a
injunctive relief against the possible recurrence of the did not "pontificat[e] on issues which no longer legitimately direct result of their issuance." They contend that the Court
violation.99 constitute an actual case or controversy [as this] will do more must have jurisdiction over the subject matter for the doctrine
harm than good to the nation as a whole." to be invoked.
The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The The present petitions must be differentiated from Suplico. The present petitions all contain prayers for Prohibition over
grounds cited above in David are just as applicable in the Primarily, in Suplico, what was assailed and eventually which this Court exercises original jurisdiction. While G.R.
present cases as they were, not only in David, but also cancelled was a stand-alone government procurement No. 183893 (City of Iligan v. GRP) is a petition for Injunction
in Province of Batangas v. Romulo100 and Manalo v. contract for a national broadband network involving a one- and Declaratory Relief, the Court will treat it as one for
Calderon101 where the Court similarly decided them on the time contractual relation between two parties-the Prohibition as it has far reaching implications and raises
merits, supervening events that would ordinarily have government and a private foreign corporation. As the issues questions that need to be resolved.105 At all events, the Court
rendered the same moot notwithstanding. therein involved specific government procurement policies has jurisdiction over most if not the rest of the petitions.
and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual
Petitions not mooted Indeed, the present petitions afford a proper venue for the
circumstances being peculiar only to the transactions and
Court to again apply the doctrine immediately referred to as
parties involved in the controversy.
what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the x x x [T]he right to information "contemplates
Provinces of North Cotabato, Zamboanga del Norte and Court ruled that access to public records is predicated on the inclusion of negotiations leading to the
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, right of the people to acquire information on matters of public consummation of the transaction." Certainly, a
and the Municipality of Linamon, will again be subjected to concern since, undoubtedly, in a democracy, the pubic has a consummated contract is not a requirement for the
the same problem in the future as respondents' actions are legitimate interest in matters of social and political exercise of the right to information. Otherwise, the
capable of repetition, in another or any form. significance. people can never exercise the right if no contract
is consummated, and if one is consummated, it
may be too late for the public to expose its defects.
It is with respect to the prayers for Mandamus that the x x x The incorporation of this right in the Constitution is a
petitions have become moot, respondents having, by recognition of the fundamental role of free exchange of
Compliance of August 7, 2008, provided this Court and information in a democracy. There can be no realistic Requiring a consummated contract will keep the
petitioners with official copies of the final draft of the MOA- perception by the public of the nation's problems, nor a public in the dark until the contract, which may be
AD and its annexes. Too, intervenors have been furnished, meaningful democratic decision-making if they are denied grossly disadvantageous to the government or
or have procured for themselves, copies of the MOA-AD. access to information of general interest. Information is even illegal, becomes fait accompli. This negates
needed to enable the members of society to cope with the the State policy of full transparency on matters of
exigencies of the times. As has been aptly observed: public concern, a situation which the framers of the
V. SUBSTANTIVE ISSUES
"Maintaining the flow of such information depends on Constitution could not have intended. Such a
protection for both its acquisition and its dissemination since, requirement will prevent the citizenry from
As culled from the Petitions and Petitions-in-Intervention, if either process is interrupted, the flow inevitably ceases." x participating in the public discussion of
there are basically two SUBSTANTIVE issues to be x x111 any proposed contract, effectively truncating a
resolved, one relating to the manner in which the MOA-AD basic right enshrined in the Bill of Rights. We can
was negotiated and finalized, the other relating to its allow neither an emasculation of a constitutional
In the same way that free discussion enables members of
provisions, viz: right, nor a retreat by the State of its avowed
society to cope with the exigencies of their time, access to
"policy of full disclosure of all its transactions
information of general interest aids the people in democratic
involving public interest."122 (Emphasis and italics
1. Did respondents violate constitutional and statutory decision-making by giving them a better perspective of the
in the original)
provisions on public consultation and the right to information vital issues confronting the nation112 so that they may be able
when they negotiated and later initialed the MOA-AD? to criticize and participate in the affairs of the government in
a responsible, reasonable and effective manner. It is by Intended as a "splendid symmetry"123 to the right to
ensuring an unfettered and uninhibited exchange of ideas information under the Bill of Rights is the policy of public
2. Do the contents of the MOA-AD violate the Constitution among a well-informed public that a government remains disclosure under Section 28, Article II of the Constitution
and the laws? responsive to the changes desired by the people.113 reading:
ON THE FIRST SUBSTANTIVE ISSUE The MOA-AD is a matter of public concern Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
Petitioners invoke their constitutional right to information implements a policy of full public disclosure of all
That the subject of the information sought in the present
on matters of public concern, as provided in Section 7, its transactions involving public interest.124
cases is a matter of public concern114 faces no serious
Article III on the Bill of Rights: challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court The policy of full public disclosure enunciated in above-
Sec. 7. The right of the people to information on found that the regularity of real estate transactions entered in quoted Section 28 complements the right of access to
matters of public concern shall be recognized. the Register of Deeds,116 the need for adequate notice to the information on matters of public concern found in the Bill of
Access to official records, and to documents, and public of the various laws,117 the civil service eligibility of a Rights. The right to information guarantees the right of the
papers pertaining to official acts, transactions, or public employee,118 the proper management of GSIS funds people to demand information, while Section 28 recognizes
decisions, as well as to government research data allegedly used to grant loans to public officials,119 the the duty of officialdom to give information even if nobody
used as basis for policy development, shall be recovery of the Marcoses' alleged ill-gotten wealth,120 and demands.125
afforded the citizen, subject to such limitations as the identity of party-list nominees,121 among others, are
may be provided by law.107 matters of public concern. Undoubtedly, the MOA-AD
The policy of public disclosure establishes a concrete ethical
subject of the present cases is of public concern,
principle for the conduct of public affairs in a genuinely open
involving as it does the sovereignty and territorial integrity
As early as 1948, in Subido v. Ozaeta,108 the Court has of the State, which directly affects the lives of the public at
democracy, with the people's right to know as the
recognized the statutory right to examine and inspect public centerpiece. It is a mandate of the State to be accountable
large.
records, a right which was eventually accorded constitutional by following such policy.126 These provisions are vital to the
status. exercise of the freedom of expression and essential to hold
Matters of public concern covered by the right to information public officials at all times accountable to the people.127
include steps and negotiations leading to the consummation
The right of access to public documents, as enshrined in of the contract. In not distinguishing as to the executory
both the 1973 Constitution and the 1987 Constitution, has Whether Section 28 is self-executory, the records of the
nature or commercial character of agreements, the Court
been recognized as a self-executory constitutional right.109 has categorically ruled:
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, An essential element of these freedoms is to keep open a Filipinos as one community."134 Included as a component of
this policy will not be enunciated or will not be in continuing dialogue or process of communication between the comprehensive peace process is consensus-building and
force and effect until after Congress shall have the government and the people. It is in the interest of the empowerment for peace, which includes "continuing
provided it. State that the channels for free political discussion be consultations on both national and local levels to build
maintained to the end that the government may perceive and consensus for a peace agenda and process, and the
be responsive to the people's will.131Envisioned to mobilization and facilitation of people's participation in the
MR. OPLE. I expect it to influence the climate of
be corollary to the twin rights to information and disclosure is peace process."135
public ethics immediately but, of course, the
the design for feedback mechanisms.
implementing law will have to be enacted by
Congress, Mr. Presiding Officer.128 Clearly, E.O. No. 3 contemplates not just the conduct of
MS. ROSARIO BRAID. Yes. And lastly, Mr. a plebiscite to effectuate "continuing" consultations,
Presiding Officer, will the people be able to contrary to respondents' position that plebiscite is
The following discourse, after Commissioner Hilario Davide,
participate? Will the government provide "more than sufficient consultation."136
Jr., sought clarification on the issue, is enlightening.
feedback mechanisms so that the people can
participate and can react where the existing
Further, E.O. No. 3 enumerates the functions and
MR. DAVIDE. I would like to get some media facilities are not able to provide full
responsibilities of the PAPP, one of which is to
clarifications on this. Mr. Presiding Officer, did I get feedback mechanisms to the government? I
"[c]onduct regular dialogues with the National Peace Forum
the Gentleman correctly as having said that this is suppose this will be part of the government
(NPF) and other peace partners to seek relevant information,
not a self-executing provision? It would require a implementing operational mechanisms.
comments, recommendations as well as to render
legislation by Congress to implement?
appropriate and timely reports on the progress of the
MR. OPLE. Yes. I think through their elected comprehensive peace process."137 E.O. No. 3 mandates the
MR. OPLE. Yes. Originally, it was going to be self- representatives and that is how these courses take establishment of the NPF to be "the principal forum for the
executing, but I accepted an amendment from place. There is a message and a feedback, both PAPP to consult with and seek advi[c]e from the peace
Commissioner Regalado, so that the safeguards ways. advocates, peace partners and concerned sectors of society
on national interest are modified by the clause "as on both national and local levels, on the implementation of
may be provided by law" the comprehensive peace process, as well as for
xxxx
government[-]civil society dialogue and consensus-building
on peace agenda and initiatives."138
MR. DAVIDE. But as worded, does it not mean
MS. ROSARIO BRAID. Mr. Presiding Officer, may
that this will immediately take effect and
I just make one last sentence?
Congress may provide for reasonable In fine, E.O. No. 3 establishes petitioners' right to be
safeguards on the sole ground national interest? consulted on the peace agenda, as a corollary to the
I think when we talk about the feedback constitutional right to information and disclosure.
network, we are not talking about public
MR. OPLE. Yes. I think so, Mr. Presiding
officials but also network of private business
Officer, I said earlier that it should immediately PAPP Esperon committed grave abuse of discretion
o[r] community-based organizations that will
influence the climate of the conduct of public
be reacting. As a matter of fact, we will put more
affairs but, of course, Congress here may no
credence or credibility on the private network of The PAPP committed grave abuse of discretion when
longer pass a law revoking it, or if this is approved,
volunteers and voluntary community-based he failed to carry out the pertinent consultation. The furtive
revoking this principle, which is inconsistent with
organizations. So I do not think we are afraid that process by which the MOA-AD was designed and
this policy.129 (Emphasis supplied)
there will be another OMA in the crafted runs contrary to and in excess of the legal
making.132(Emphasis supplied) authority, and amounts to a whimsical, capricious,
Indubitably, the effectivity of the policy of public oppressive, arbitrary and despotic exercise thereof.
disclosure need not await the passing of a statute. As
The imperative of a public consultation, as a species of the
Congress cannot revoke this principle, it is merely directed to
right to information, is evident in the "marching orders" to The Court may not, of course, require the PAPP to conduct
provide for "reasonable safeguards." The complete and
respondents. The mechanics for the duty to disclose the consultation in a particular way or manner. It may,
effective exercise of the right to information necessitates that
information and to conduct public consultation regarding the however, require him to comply with the law and discharge
its complementary provision on public disclosure derive the
peace agenda and process is manifestly provided by E.O. the functions within the authority granted by the President.139
same self-executory nature. Since both provisions go hand-
No. 3.133 The preambulatory clause of E.O. No. 3 declares
in-hand, it is absurd to say that the broader130 right to
that there is a need to further enhance the contribution of
information on matters of public concern is already Petitioners are not claiming a seat at the negotiating table,
civil society to the comprehensive peace process by
enforceable while the correlative duty of the State to disclose contrary to respondents' retort in justifying the denial of
institutionalizing the people's participation.
its transactions involving public interest is not enforceable petitioners' right to be consulted. Respondents' stance
until there is an enabling law. Respondents cannot thus point manifests the manner by which they treat the salient
to the absence of an implementing legislation as an excuse One of the three underlying principles of the comprehensive provisions of E.O. No. 3 on people's participation. Such
in not effecting such policy. peace process is that it "should be community-based, disregard of the express mandate of the President is not
reflecting the sentiments, values and principles important to much different from superficial conduct toward token
all Filipinos" and "shall be defined not by the government provisos that border on classic lip service.140 It illustrates a
alone, nor by the different contending groups only, but by all
gross evasion of positive duty and a virtual refusal to perform pervasively and drastically result to the diaspora or In general, the objections against the MOA-AD center on the
the duty enjoined. displacement of a great number of inhabitants from their extent of the powers conceded therein to the BJE.
total environment. Petitioners assert that the powers granted to the BJE exceed
those granted to any local government under present laws,
As for respondents' invocation of the doctrine of executive
and even go beyond those of the present ARMM. Before
privilege, it is not tenable under the premises. The argument With respect to the indigenous cultural
assessing some of the specific powers that would have been
defies sound reason when contrasted with E.O. No. 3's communities/indigenous peoples (ICCs/IPs), whose interests
vested in the BJE, however, it would be useful to turn first to
explicit provisions on continuing consultation and dialogue are represented herein by petitioner Lopez and are
a general idea that serves as a unifying link to the different
on both national and local levels. The executive order even adversely affected by the MOA-AD, the ICCs/IPs have,
provisions of the MOA-AD, namely, the international
recognizes the exercise of the public's right even before under the IPRA, the right to participate fully at all levels of
law concept of association. Significantly, the MOA-AD
the GRP makes its official recommendations or before the decision-making in matters which may affect their rights,
explicitly alludes to this concept, indicating that the Parties
government proffers its definite propositions.141 It bear lives and destinies.147 The MOA-AD, an instrument
actually framed its provisions with it in mind.
emphasis that E.O. No. 3 seeks to elicit relevant advice, recognizing ancestral domain, failed to justify its non-
information, comments and recommendations from the compliance with the clear-cut mechanisms ordained in said
people through dialogue. Act,148 which entails, among other things, the observance of Association is referred to in paragraph 3 on TERRITORY,
the free and prior informed consent of the ICCs/IPs. paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision,
AT ALL EVENTS, respondents effectively waived the
however, that the MOA-AD most clearly uses it to describe
defense of executive privilege in view of their unqualified Notably, the IPRA does not grant the Executive Department
the envisioned relationship between the BJE and the Central
disclosure of the official copies of the final draft of the MOA- or any government agency the power to delineate and
Government.
AD. By unconditionally complying with the Court's August 4, recognize an ancestral domain claim by mere agreement or
2008 Resolution, without a prayer for the document's compromise. The recognition of the ancestral domain is
disclosure in camera, or without a manifestation that it was the raison d'etre of the MOA-AD, without which all other 4. The relationship between the Central
complying therewith ex abundante ad cautelam. stipulations or "consensus points" necessarily must fail. In Government and the Bangsamoro juridical
proceeding to make a sweeping declaration on ancestral entity shall be associative characterized by
domain, without complying with the IPRA, which is cited as shared authority and responsibility with a
Petitioners' assertion that the Local Government Code (LGC)
one of the TOR of the MOA-AD, respondents clearly structure of governance based on executive,
of 1991 declares it a State policy to "require all national
transcended the boundaries of their authority. As it legislative, judicial and administrative institutions
agencies and offices to conduct periodic consultations with
seems, even the heart of the MOA-AD is still subject to with defined powers and functions in the
appropriate local government units, non-governmental and
necessary changes to the legal framework. While paragraph comprehensive compact. A period of transition
people's organizations, and other concerned sectors of the
7 on Governance suspends the effectivity of all provisions shall be established in a comprehensive peace
community before any project or program is implemented in
requiring changes to the legal framework, such clause is compact specifying the relationship between the
their respective jurisdictions"142 is well-taken. The LGC
itself invalid, as will be discussed in the following section. Central Government and the BJE. (Emphasis and
chapter on intergovernmental relations puts flesh into this
underscoring supplied)
avowed policy:
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always The nature of the "associative" relationship may have been
Prior Consultations Required. - No project or
to public cognizance. This has to be so if the country is to intended to be defined more precisely in the still to be forged
program shall be implemented by government
remain democratic, with sovereignty residing in the people Comprehensive Compact. Nonetheless, given that there is a
authorities unlessthe consultations mentioned in
and all government authority emanating from them.149 concept of "association" in international law, and the MOA-
Sections 2 (c) and 26 hereof are complied with,
AD - by its inclusion of international law instruments in its
and prior approval of the sanggunian concerned is
TOR- placed itself in an international legal context, that
obtained: Provided, That occupants in areas ON THE SECOND SUBSTANTIVE ISSUE
concept of association may be brought to bear in
where such projects are to be implemented shall
understanding the use of the term "associative" in the MOA-
not be evicted unless appropriate relocation sites
With regard to the provisions of the MOA-AD, there can be AD.
have been provided, in accordance with the
no question that they cannot all be accommodated under the
provisions of the Constitution.143 (Italics and
present Constitution and laws. Respondents have admitted
underscoring supplied) Keitner and Reisman state that
as much in the oral arguments before this Court, and the
MOA-AD itself recognizes the need to amend the existing
In Lina, Jr. v. Hon. Paño,144 the Court held that the above- legal framework to render effective at least some of its [a]n association is formed when two states of
stated policy and above-quoted provision of the LGU apply provisions. Respondents, nonetheless, counter that the unequal power voluntarily establish durable links.
only to national programs or projects which are to be MOA-AD is free of any legal infirmity because any provisions In the basic model, one state, the associate,
implemented in a particular local community. Among the therein which are inconsistent with the present legal delegates certain responsibilities to the other,
programs and projects covered are those that are critical to framework will not be effective until the necessary changes the principal, while maintaining its
the environment and human ecology including those that to that framework are made. The validity of this argument will international status as a state. Free
may call for the eviction of a particular group of people be considered later. For now, the Court shall pass upon how associations represent a middle ground
residing in the locality where these will be between integration and independence. x x
implemented.145 The MOA-AD is one peculiar program x150 (Emphasis and underscoring supplied)
The MOA-AD is inconsistent with the Constitution and
that unequivocally and unilaterally vests ownership of a
laws as presently worded.
vast territory to the Bangsamoro people,146 which could
For purposes of illustration, the Republic of the Marshall specialized UN agencies, and the continuing responsibility of The BJE is a far more powerful
Islands and the Federated States of Micronesia (FSM), the Central Government over external defense. Moreover, entity than the autonomous region
formerly part of the U.S.-administered Trust Territory of the the BJE's right to participate in Philippine official missions recognized in the Constitution
Pacific Islands,151 are associated states of the U.S. pursuant bearing on negotiation of border agreements, environmental
to a Compact of Free Association. The currency in these protection, and sharing of revenues pertaining to the bodies
It is not merely an expanded version of the ARMM, the
countries is the U.S. dollar, indicating their very close ties of water adjacent to or between the islands forming part of
status of its relationship with the national government being
with the U.S., yet they issue their own travel documents, the ancestral domain, resembles the right of the
fundamentally different from that of the ARMM. Indeed, BJE
which is a mark of their statehood. Their international legal governments of FSM and the Marshall Islands to be
is a state in all but name as it meets the criteria of a
status as states was confirmed by the UN Security Council consulted by the U.S. government on any foreign affairs
state laid down in the Montevideo Convention,154 namely,
and by their admission to UN membership. matter affecting them.
a permanent population, a defined territory, a government,
and a capacity to enter into relations with other states.
According to their compacts of free association, the Marshall These provisions of the MOA indicate, among other things,
Islands and the FSM generally have the capacity to conduct that the Parties aimed to vest in the BJE the status of
Even assuming arguendo that the MOA-AD would not
foreign affairs in their own name and right, such capacity an associated state or, at any rate, a status closely
necessarily sever any portion of Philippine territory, the
extending to matters such as the law of the sea, marine approximating it.
spirit animating it - which has betrayed itself by its use of
resources, trade, banking, postal, civil aviation, and cultural
the concept of association - runs counter to the national
relations. The U.S. government, when conducting its foreign
The concept of association is not recognized under the sovereignty and territorial integrity of the Republic.
affairs, is obligated to consult with the governments of the
present Constitution
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either The defining concept underlying the relationship
government. No province, city, or municipality, not even the ARMM, is between the national government and the BJE being
recognized under our laws as having an "associative" itself contrary to the present Constitution, it is not
relationship with the national government. Indeed, the surprising that many of the specific provisions of the
In the event of attacks or threats against the Marshall Islands
concept implies powers that go beyond anything ever MOA-AD on the formation and powers of the BJE are in
or the FSM, the U.S. government has the authority and
granted by the Constitution to any local or regional conflict with the Constitution and the laws.
obligation to defend them as if they were part of U.S.
government. It also implies the recognition of the associated
territory. The U.S. government, moreover, has the option of
entity as a state. The Constitution, however, does not
establishing and using military areas and facilities within Article X, Section 18 of the Constitution provides that "[t]he
contemplate any state in this jurisdiction other than the
these associated states and has the right to bar the military creation of the autonomous region shall be effective when
Philippine State, much less does it provide for a transitory
personnel of any third country from having access to these approved by a majority of the votes cast by the constituent
status that aims to prepare any part of Philippine territory for
territories for military purposes. units in a plebiscite called for the purpose, provided that only
independence.
provinces, cities, and geographic areas voting favorably
in such plebiscite shall be included in the autonomous
It bears noting that in U.S. constitutional and international
Even the mere concept animating many of the MOA-AD's region." (Emphasis supplied)
practice, free association is understood as an international
provisions, therefore, already requires for its validity the
association between sovereigns. The Compact of Free
amendment of constitutional provisions, specifically the
Association is a treaty which is subordinate to the associated As reflected above, the BJE is more of a state than an
following provisions of Article X:
nation's national constitution, and each party may terminate autonomous region. But even assuming that it is covered by
the association consistent with the right of independence. It the term "autonomous region" in the constitutional provision
has been said that, with the admission of the U.S.- SECTION 1. The territorial and political just quoted, the MOA-AD would still be in conflict with it.
associated states to the UN in 1990, the UN recognized that subdivisions of the Republic of the Philippines are Under paragraph 2(c) on TERRITORY in relation to 2(d) and
the American model of free association is actually based on the provinces, cities, municipalities, and 2(e), the present geographic area of the ARMM and, in
an underlying status of independence.152 barangays. There shall be autonomous addition, the municipalities of Lanao del Norte which voted
regions in Muslim Mindanao and the Cordilleras for inclusion in the ARMM during the 2001 plebiscite - Baloi,
as hereinafter provided. Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
In international practice, the "associated state" arrangement
automatically part of the BJE without need of another
has usually been used as a transitional device of former
plebiscite, in contrast to the areas under Categories A and B
colonies on their way to full independence. Examples of SECTION 15. There shall be created autonomous
mentioned earlier in the overview. That the present
states that have passed through the status of associated regions in Muslim Mindanao and in the Cordilleras
components of the ARMM and the above-mentioned
states as a transitional phase are Antigua, St. Kitts-Nevis- consisting of provinces, cities, municipalities, and
municipalities voted for inclusion therein in 2001, however,
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All geographical areas sharing common and
does not render another plebiscite unnecessary under the
have since become independent states.153 distinctive historical and cultural heritage,
Constitution, precisely because what these areas voted for
economic and social structures, and other relevant
then was their inclusion in the ARMM, not the BJE.
characteristics within the framework of this
Back to the MOA-AD, it contains many provisions which are
Constitution and the national sovereignty as
consistent with the international legal concept of association,
well as territorial integrity of the Republic of The MOA-AD, moreover, would not
specifically the following: the BJE's capacity to enter into
the Philippines. comply with Article X, Section 20 of
economic and trade relations with foreign countries, the
the Constitution
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
since that provision defines the powers of autonomous nations. As the chief architect of foreign policy, "As used in this Organic Act, the phrase
regions as follows: the President acts as the country's mouthpiece "indigenous cultural community" refers to Filipino
with respect to international affairs. Hence, the citizens residing in the autonomous region who
President is vested with the authority to deal are:
SECTION 20. Within its territorial jurisdiction
with foreign states and governments, extend or
and subject to the provisions of this Constitution
withhold recognition, maintain diplomatic
and national laws, the organic act of autonomous (a) Tribal peoples. These are citizens whose
relations, enter into treaties, and otherwise
regions shall provide for legislative powers over: social, cultural and economic conditions
transact the business of foreign relations. In
distinguish them from other sectors of the national
the realm of treaty-making, the President has
community; and
(1) Administrative organization; the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
(b) Bangsa Moro people. These are citizens who
(2) Creation of sources of revenues;
are believers in Islam and who have retained
Article II, Section 22 of the Constitution must also be
some or all of their own social, economic,
amended if the scheme envisioned in the MOA-AD is to
(3) Ancestral domain and natural resources; cultural, and political institutions."
be effected. That constitutional provision states: "The State
recognizes and promotes the rights of indigenous cultural
(4) Personal, family, and property relations; communities within the framework of national unity and Respecting the IPRA, it lays down the prevailing procedure
development." (Underscoring for the delineation and recognition of ancestral domains. The
supplied) An associative arrangement does not uphold MOA-AD's manner of delineating the ancestral domain of the
(5) Regional urban and rural planning national unity. While there may be a semblance of unity Bangsamoro people is a clear departure from that
development; because of the associative ties between the BJE and the procedure. By paragraph 1 of Territory, the Parties simply
national government, the act of placing a portion of agree that, subject to the delimitations in the agreed
(6) Economic, social, and tourism development; Philippine territory in a status which, in international practice, Schedules, "[t]he Bangsamoro homeland and historic
has generally been a preparation for independence, is territory refer to the land mass as well as the maritime,
certainly not conducive to national unity. terrestrial, fluvial and alluvial domains, and the aerial
(7) Educational policies; domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region."
Besides being irreconcilable with the Constitution, the MOA-
(8) Preservation and development of the cultural AD is also inconsistent with prevailing statutory law,
heritage; and among which are R.A. No. 9054156 or the Organic Act of the Chapter VIII of the IPRA, on the other hand, lays down a
ARMM, and the IPRA.157 detailed procedure, as illustrated in the following provisions
(9) Such other matters as may be authorized by thereof:
law for the promotion of the general welfare of the Article X, Section 3 of the Organic Act of the ARMM is a
people of the region. (Underscoring supplied) bar to the adoption of the definition of "Bangsamoro SECTION 52. Delineation Process. - The
people" used in the MOA-AD. Paragraph 1 on Concepts and identification and delineation of ancestral domains
Again on the premise that the BJE may be regarded as an Principles states: shall be done in accordance with the following
autonomous region, the MOA-AD would require an procedures:
amendment that would expand the above-quoted provision. 1. It is the birthright of all Moros and all
The mere passage of new legislation pursuant to sub- Indigenous peoples of Mindanao to identify xxxx
paragraph No. 9 of said constitutional provision would not themselves and be accepted as
suffice, since any new law that might vest in the BJE the "Bangsamoros". The Bangsamoro people refers
powers found in the MOA-AD must, itself, comply with other to those who are natives or original inhabitants b) Petition for Delineation. - The process of
provisions of the Constitution. It would not do, for instance, to of Mindanao and its adjacent islands including delineating a specific perimeter may be initiated by
merely pass legislation vesting the BJE with treaty-making the NCIP with the consent of the ICC/IP
Palawan and the Sulu archipelago at the time of
power in order to accommodate paragraph 4 of the strand on conquest or colonization of its descendants concerned, or through a Petition for Delineation
RESOURCES which states: "The BJE is free to enter into whether mixed or of full blood. Spouses and their filed with the NCIP, by a majority of the members
any economic cooperation and trade relations with foreign of the ICCs/IPs;
descendants are classified as Bangsamoro. The
countries: provided, however, that such relationships and freedom of choice of the Indigenous people shall
understandings do not include aggression against the be respected. (Emphasis and underscoring c) Delineation Proper. - The official delineation of
Government of the Republic of the Philippines x x x." Under supplied) ancestral domain boundaries including census of
our constitutional system, it is only the President who has all community members therein, shall be
that power. Pimentel v. Executive Secretary155 instructs:
This use of the term Bangsamoro sharply contrasts with that immediately undertaken by the Ancestral Domains
Office upon filing of the application by the ICCs/IPs
found in the Article X, Section 3 of the Organic Act, which,
In our system of government, the President, being rather than lumping together the identities of the concerned. Delineation will be done in
the head of state, is regarded as the sole Bangsamoro and other indigenous peoples living in coordination with the community concerned and
organ and authority in external relations and is Mindanao, clearly distinguishes between Bangsamoro shall at all times include genuine involvement and
the country's sole representative with foreign people and Tribal peoples, as follows:
participation by the members of the communities technical descriptions, and a description of the Article II, Section 2 of the Constitution states that the
concerned; natural features and landmarks embraced therein; Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
d) Proof Required. - Proof of Ancestral Domain f) Report of Investigation and Other Documents. -
Claims shall include the testimony of elders or A complete copy of the preliminary census and a Applying this provision of the Constitution, the Court,
community under oath, and other documents report of investigation, shall be prepared by the in Mejoff v. Director of Prisons,158 held that the Universal
directly or indirectly attesting to the possession or Ancestral Domains Office of the NCIP; Declaration of Human Rights is part of the law of the land on
occupation of the area since time immemorial by account of which it ordered the release on bail of a detained
such ICCs/IPs in the concept of owners which alien of Russian descent whose deportation order had not
g) Notice and Publication. - A copy of each
shall be any one (1) of the following authentic been executed even after two years. Similarly, the Court
document, including a translation in the native
documents: in Agustin v. Edu159 applied the aforesaid constitutional
language of the ICCs/IPs concerned shall be
provision to the 1968 Vienna Convention on Road Signs and
posted in a prominent place therein for at least
Signals.
1) Written accounts of the ICCs/IPs fifteen (15) days. A copy of the document shall
customs and traditions; also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a International law has long recognized the right to self-
newspaper of general circulation once a week for determination of "peoples," understood not merely as the
2) Written accounts of the ICCs/IPs
two (2) consecutive weeks to allow other claimants entire population of a State but also a portion thereof. In
political structure and institution;
to file opposition thereto within fifteen (15) days considering the question of whether the people of Quebec
from date of such publication: Provided, That in had a right to unilaterally secede from Canada, the Canadian
3) Pictures showing long term areas where no such newspaper exists, Supreme Court in REFERENCE RE SECESSION OF
occupation such as those of old broadcasting in a radio station will be a valid QUEBEC160 had occasion to acknowledge that "the right of a
improvements, burial grounds, sacred substitute: Provided, further, That mere posting people to self-determination is now so widely recognized in
places and old villages; shall be deemed sufficient if both newspaper and international conventions that the principle has acquired a
radio station are not available; status beyond ‘convention' and is considered a general
principle of international law."
4) Historical accounts, including pacts
and agreements concerning boundaries h) Endorsement to NCIP. - Within fifteen (15) days
entered into by the ICCs/IPs concerned from publication, and of the inspection process, Among the conventions referred to are the International
with other ICCs/IPs; the Ancestral Domains Office shall prepare a Covenant on Civil and Political Rights161 and the
report to the NCIP endorsing a favorable action International Covenant on Economic, Social and Cultural
upon a claim that is deemed to have sufficient Rights162 which state, in Article 1 of both covenants, that all
5) Survey plans and sketch maps; proof. However, if the proof is deemed insufficient, peoples, by virtue of the right of self-determination, "freely
the Ancestral Domains Office shall require the determine their political status and freely pursue their
6) Anthropological data; submission of additional evidence: Provided, That economic, social, and cultural development."
the Ancestral Domains Office shall reject any claim
that is deemed patently false or fraudulent after
7) Genealogical surveys; The people's right to self-determination should not, however,
inspection and verification: Provided, further, That
be understood as extending to a unilateral right of secession.
in case of rejection, the Ancestral Domains Office
A distinction should be made between the right of internal
8) Pictures and descriptive histories of shall give the applicant due notice, copy furnished
and external self-determination. REFERENCE RE
traditional communal forests and hunting all concerned, containing the grounds for denial.
SECESSION OF QUEBEC is again instructive:
grounds; The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there
are conflicting claims among ICCs/IPs on the "(ii) Scope of the Right to Self-determination
9) Pictures and descriptive histories of boundaries of ancestral domain claims, the
traditional landmarks such as Ancestral Domains Office shall cause the
mountains, rivers, creeks, ridges, hills, contending parties to meet and assist them in 126. The recognized sources of international law
terraces and the like; and establish that the right to self-determination of a
coming up with a preliminary resolution of the
people is normally fulfilled
conflict, without prejudice to its full adjudication
through internal self-determination - a people's
10) Write-ups of names and places according to the section below.
pursuit of its political, economic, social and
derived from the native dialect of the cultural development within the framework of
community. xxxx an existing state. A right to external self-
determination (which in this case potentially
e) Preparation of Maps. - On the basis of such takes the form of the assertion of a right to
To remove all doubts about the irreconcilability of the MOA-
investigation and the findings of fact based unilateral secession) arises in only the most
AD with the present legal system, a discussion of not only
thereon, the Ancestral Domains Office of the NCIP extreme of cases and, even then, under
the Constitution and domestic statutes, but also of
shall prepare a perimeter map, complete with carefully defined circumstances. x x x
international law is in order, for
External self-determination can be defined as x x x [I]n the absence of express provisions in scholarship as well as international, regional, and state
in the following statement from the Declaration international treaties, the right of disposing of practices, to refer to groups with distinct cultures, histories,
on Friendly Relations, supra, as national territory is essentially an attribute of and connections to land (spiritual and otherwise) that have
the sovereignty of every State. Positive been forcibly incorporated into a larger governing society.
International Law does not recognize the right These groups are regarded as "indigenous" since they are
The establishment of a sovereign and
of national groups, as such, to separate the living descendants of pre-invasion inhabitants of lands
independent State, the free association or
themselves from the State of which they form now dominated by others. Otherwise stated, indigenous
integration with an independent State or the
part by the simple expression of a wish, any peoples, nations, or communities are culturally distinctive
emergence into any other political status freely
more than it recognizes the right of other States to groups that find themselves engulfed by settler societies
determined by a peopleconstitute modes of
claim such a separation. Generally speaking, the born of the forces of empire and conquest.164 Examples of
implementing the right of self-determination by that
grant or refusal of the right to a portion of its groups who have been regarded as indigenous peoples are
people. (Emphasis added)
population of determining its own political fate the Maori of New Zealand and the aboriginal peoples of
by plebiscite or by some other method, is, Canada.
127. The international law principle of self- exclusively, an attribute of the sovereignty of
determination has evolved within a framework every State which is definitively constituted. A
As with the broader category of "peoples," indigenous
of respect for the territorial integrity of existing dispute between two States concerning such a
peoples situated within states do not have a general right to
states. The various international documents that question, under normal conditions therefore, bears
independence or secession from those states under
support the existence of a people's right to self- upon a question which International Law leaves
international law,165 but they do have rights amounting to
determination also contain parallel statements entirely to the domestic jurisdiction of one of the
what was discussed above as the right to internal self-
supportive of the conclusion that the exercise of States concerned. Any other solution would
determination.
such a right must be sufficiently limited to prevent amount to an infringement of sovereign rights of a
threats to an existing state's territorial integrity or State and would involve the risk of creating
the stability of relations between sovereign states. difficulties and a lack of stability which would not In a historic development last September 13, 2007, the UN
only be contrary to the very idea embodied in term General Assembly adopted the United Nations Declaration
"State," but would also endanger the interests of on the Rights of Indigenous Peoples (UN DRIP)
x x x x (Emphasis, italics and underscoring
the international community. If this right is not through General Assembly Resolution 61/295. The vote
supplied) possessed by a large or small section of a nation, was 143 to 4, the Philippines being included among those in
neither can it be held by the State to which the favor, and the four voting against being Australia, Canada,
The Canadian Court went on to discuss the exceptional national group wishes to be attached, nor by any New Zealand, and the U.S. The Declaration clearly
cases in which the right to external self-determination can other State. (Emphasis and underscoring supplied) recognized the right of indigenous peoples to self-
arise, namely, where a people is under colonial rule, is determination, encompassing the right to autonomy or
subject to foreign domination or exploitation outside a self-government, to wit:
The Committee held that the dispute concerning the Aaland
colonial context, and - less definitely but asserted by a Islands did not refer to a question which is left by
number of commentators - is blocked from the meaningful
international law to the domestic jurisdiction of Finland, Article 3
exercise of its right to internal self-determination. The Court thereby applying the exception rather than the rule
ultimately held that the population of Quebec had no right to elucidated above. Its ground for departing from the general
secession, as the same is not under colonial rule or foreign Indigenous peoples have the right to self-
rule, however, was a very narrow one, namely, the Aaland
domination, nor is it being deprived of the freedom to make determination. By virtue of that right they freely
Islands agitation originated at a time when Finland was
political choices and pursue economic, social and cultural undergoing drastic political transformation. The internal determine their political status and freely pursue
development, citing that Quebec is equitably represented in their economic, social and cultural development.
situation of Finland was, according to the Committee, so
legislative, executive and judicial institutions within Canada, abnormal that, for a considerable time, the conditions
even occupying prominent positions therein. required for the formation of a sovereign State did not exist. Article 4
In the midst of revolution, anarchy, and civil war, the
The exceptional nature of the right of secession is further legitimacy of the Finnish national government was disputed
by a large section of the people, and it had, in fact, been Indigenous peoples, in exercising their right to self-
exemplified in the REPORT OF THE INTERNATIONAL
chased from the capital and forcibly prevented from carrying determination, have the right
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
to autonomy or self-government in matters
THE AALAND ISLANDS QUESTION.163 There, Sweden out its duties. The armed camps and the police were divided
into two opposing forces. In light of these circumstances, relating to their internal and local affairs, as
presented to the Council of the League of Nations the
Finland was not, during the relevant time period, a well as ways and means for financing their
question of whether the inhabitants of the Aaland Islands
"definitively constituted" sovereign state. The Committee, autonomous functions.
should be authorized to determine by plebiscite if the
archipelago should remain under Finnish sovereignty or be therefore, found that Finland did not possess the right to
incorporated in the kingdom of Sweden. The Council, before withhold from a portion of its population the option to Article 5
resolving the question, appointed an International Committee separate itself - a right which sovereign nations generally
composed of three jurists to submit an opinion on the have with respect to their own populations.
preliminary issue of whether the dispute should, based on Indigenous peoples have the right to maintain and
international law, be entirely left to the domestic jurisdiction strengthen their distinct political, legal, economic,
Turning now to the more specific category social and cultural institutions, while retaining their
of Finland. The Committee stated the rule as follows: of indigenous peoples, this term has been used, in right to participate fully, if they so choose, in the
political, economic, social and cultural life of the elders, women, youth, children and persons with 3. States shall provide effective mechanisms for
State. disabilities. just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural
Self-government, as used in international legal discourse Article 26
or spiritual impact.
pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination."166 The extent of
1. Indigenous peoples have the right to the
self-determination provided for in the UN DRIP is more Article 37
lands, territories and resources which they
particularly defined in its subsequent articles, some of which
have traditionally owned, occupied or
are quoted hereunder:
otherwise used or acquired. 1. Indigenous peoples have the right to the
recognition, observance and enforcement of
Article 8 treaties, agreements and other constructive
2. Indigenous peoples have the right to own, use,
arrangements concluded with States or their
develop and control the lands, territories and
successors and to have States honour and respect
1. Indigenous peoples and individuals have the resources that they possess by reason of
such treaties, agreements and other constructive
right not to be subjected to forced assimilation or traditional ownership or other traditional
arrangements.
destruction of their culture. occupation or use, as well as those which they
have otherwise acquired.
2. Nothing in this Declaration may be interpreted
2. States shall provide effective mechanisms
as diminishing or eliminating the rights of
for prevention of, and redress for: 3. States shall give legal recognition and
indigenous peoples contained in treaties,
protection to these lands, territories and resources.
agreements and other constructive arrangements.
Such recognition shall be conducted with due
(a) Any action which has the aim or effect of
respect to the customs, traditions and land tenure
depriving them of their integrity as distinct
systems of the indigenous peoples concerned. Article 38
peoples, or of their cultural values or ethnic
identities;
Article 30 States in consultation and cooperation with
indigenous peoples, shall take the appropriate
(b) Any action which has the aim or effect of
measures, including legislative measures, to
dispossessing them of their lands, territories 1. Military activities shall not take place in the
achieve the ends of this Declaration.
or resources; lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous Assuming that the UN DRIP, like the Universal Declaration
(c) Any form of forced population transfer
peoples concerned. on Human Rights, must now be regarded as embodying
which has the aim or effect of violating or
customary international law - a question which the Court
undermining any of their rights;
need not definitively resolve here - the obligations
2. States shall undertake effective consultations
enumerated therein do not strictly require the Republic to
with the indigenous peoples concerned, through
(d) Any form of forced assimilation or integration; grant the Bangsamoro people, through the instrumentality of
appropriate procedures and in particular through
the BJE, the particular rights and powers provided for in the
their representative institutions, prior to using their
MOA-AD. Even the more specific provisions of the UN DRIP
(e) Any form of propaganda designed to lands or territories for military activities.
are general in scope, allowing for flexibility in its application
promote or incite racial or ethnic
by the different States.
discrimination directed against them.
Article 32
There is, for instance, no requirement in the UN DRIP that
Article 21
1. Indigenous peoples have the right to determine States now guarantee indigenous peoples their own police
and develop priorities and strategies for the and internal security force. Indeed, Article 8 presupposes
1. Indigenous peoples have the right, without development or use of their lands or territories and that it is the State which will provide protection for indigenous
discrimination, to the improvement of their other resources. peoples against acts like the forced dispossession of their
economic and social conditions, including, inter lands - a function that is normally performed by police
alia, in the areas of education, employment, officers. If the protection of a right so essential to indigenous
2. States shall consult and cooperate in good faith people's identity is acknowledged to be the responsibility of
vocational training and retraining, housing,
with the indigenous peoples concerned through the State, then surely the protection of rights less significant
sanitation, health and social security.
their own representative institutions in order to
to them as such peoples would also be the duty of States.
obtain their free and informed consent prior to the Nor is there in the UN DRIP an acknowledgement of the right
2. States shall take effective measures and, where approval of any project affecting their lands or of indigenous peoples to the aerial domain and atmospheric
appropriate, special measures to ensure territories and other resources, particularly in
space. What it upholds, in Article 26 thereof, is the right of
continuing improvement of their economic and connection with the development, utilization or indigenous peoples to the lands, territories and resources
social conditions. Particular attention shall be paid exploitation of mineral, water or other resources. which they have traditionally owned, occupied or otherwise
to the rights and special needs of indigenous used or acquired.
Moreover, the UN DRIP, while upholding the right of Notwithstanding the suspensive clause, however, require administrative action, new legislation
indigenous peoples to autonomy, does not obligate States to respondents, by their mere act of incorporating in the MOA- or even constitutional amendments.
grant indigenous peoples the near-independent status of an AD the provisions thereof regarding the associative
associated state. All the rights recognized in that document relationship between the BJE and the Central Government,
x x x x (Emphasis supplied)
are qualified in Article 46 as follows: have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the The MOA-AD, therefore, may reasonably be perceived as an
1. Nothing in this Declaration may
principles of the sovereignty and territorial integrityof the attempt of respondents to address, pursuant to this provision
be interpreted as implying for any State, people,
Republic of the Philippines." (Emphasis supplied) of E.O. No. 3, the root causes of the armed conflict in
group or person any right to engage in any activity
Establishing an associative relationship between the BJE Mindanao. The E.O. authorized them to "think outside the
or to perform any act contrary to the Charter of the
and the Central Government is, for the reasons already box," so to speak. Hence, they negotiated and were set on
United Nations or construed as authorizing or
discussed, a preparation for independence, or worse, an signing the MOA-AD that included various social, economic,
encouraging any action which would
implicit acknowledgment of an independent status already and political reforms which cannot, however, all be
dismember or impair, totally or in part, the
prevailing. accommodated within the present legal framework, and
territorial integrity or political unity of
which thus would require new legislation and constitutional
sovereign and independent States.
amendments.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
Even if the UN DRIP were considered as part of the law of
clause is invalid, as discussed below. The inquiry on the legality of the "suspensive clause,"
the land pursuant to Article II, Section 2 of the Constitution, it
however, cannot stop here, because it must be
would not suffice to uphold the validity of the MOA-AD so as
asked whether the President herself may exercise the
to render its compliance with other laws unnecessary. The authority of the GRP Peace Negotiating Panel to
power delegated to the GRP Peace Panel under E.O. No.
negotiate with the MILF is founded on E.O. No. 3, Section
3, Sec. 4(a).
5(c), which states that there shall be established
It is, therefore, clear that the MOA-AD contains
Government Peace Negotiating Panels for negotiations with
numerous provisions that cannot be reconciled with the
different rebel groups to be "appointed by the President as The President cannot delegate a power that she herself does
Constitution and the laws as presently worded.
her official emissaries to conduct negotiations, dialogues, not possess. May the President, in the course of peace
Respondents proffer, however, that the signing of the MOA-
and face-to-face discussions with rebel groups." These negotiations, agree to pursue reforms that would require new
AD alone would not have entailed any violation of law or
negotiating panels are to report to the President, through the legislation and constitutional amendments, or should the
grave abuse of discretion on their part, precisely because it
PAPP on the conduct and progress of the negotiations. reforms be restricted only to those solutions which the
stipulates that the provisions thereof inconsistent with the
present laws allow? The answer to this question requires a
laws shall not take effect until these laws are amended. They
discussion of the extent of the President's power to
cite paragraph 7 of the MOA-AD strand on GOVERNANCE It bears noting that the GRP Peace Panel, in exploring
conduct peace negotiations.
quoted earlier, but which is reproduced below for lasting solutions to the Moro Problem through its
convenience: negotiations with the MILF, was not restricted by E.O. No. 3
only to those options available under the laws as they That the authority of the President to conduct peace
presently stand. One of the components of a comprehensive negotiations with rebel groups is not explicitly mentioned in
7. The Parties agree that the mechanisms and
peace process, which E.O. No. 3 collectively refers to as the the Constitution does not mean that she has no such
modalities for the actual implementation of this
"Paths to Peace," is the pursuit of social, economic, and authority. In Sanlakas v. Executive Secretary,168 in issue was
MOA-AD shall be spelt out in the Comprehensive
political reforms which may require new legislation or even the authority of the President to declare a state of rebellion -
Compact to mutually take such steps to enable it
constitutional amendments. Sec. 4(a) of E.O. No. 3, which an authority which is not expressly provided for in the
to occur effectively.
reiterates Section 3(a), of E.O. No. 125,167 states: Constitution. The Court held thus:
SUMMARY The contents of the MOA-AD is a matter of paramount public In sum, the Presidential Adviser on the Peace Process
concern involving public interest in the highest order. In committed grave abuse of discretion when he failed to carry
declaring that the right to information contemplates steps out the pertinent consultation process, as mandated by E.O.
The petitions are ripe for adjudication. The failure of
and negotiations leading to the consummation of the No. 3, Republic Act No. 7160, and Republic Act No. 8371.
respondents to consult the local government units or
contract, jurisprudence finds no distinction as to the The furtive process by which the MOA-AD was designed and
communities affected constitutes a departure by respondents
executory nature or commercial character of the agreement. crafted runs contrary to and in excess of the legal authority,
from their mandate under E.O. No. 3. Moreover, respondents
and amounts to a whimsical, capricious, oppressive, arbitrary
exceeded their authority by the mere act of guaranteeing
and despotic exercise thereof. It illustrates a gross evasion
amendments to the Constitution. Any alleged violation of the An essential element of these twin freedoms is to keep a
of positive duty and a virtual refusal to perform the duty
Constitution by any branch of government is a proper matter continuing dialogue or process of communication between
enjoined.
for judicial review. the government and the people. Corollary to these twin rights
is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public The MOA-AD cannot be reconciled with the present
As the petitions involve constitutional issues which are of
rights. Constitution and laws. Not only its specific provisions but the
paramount public interest or of transcendental importance,
very concept underlying them, namely, the associative
the Court grants the petitioners, petitioners-in-intervention
relationship envisioned between the GRP and the
and intervening respondents the requisite locus standi in At least three pertinent laws animate these constitutional
BJE, are unconstitutional, for the concept presupposes that
keeping with the liberal stance adopted in David v. imperatives and justify the exercise of the people's right to be
the associated entity is a state and implies that the same is
Macapagal-Arroyo. consulted on relevant matters relating to the peace agenda.
on its way to independence.
Contrary to the assertion of respondents that the non-signing One, E.O. No. 3 itself is replete with mechanics for
While there is a clause in the MOA-AD stating that the
of the MOA-AD and the eventual dissolution of the GRP continuing consultations on both national and local levels
provisions thereof inconsistent with the present legal
Peace Panel mooted the present petitions, the Court finds and for a principal forum for consensus-building. In fact, it is
framework will not be effective until that framework is
that the present petitions provide an exception to the "moot the duty of the Presidential Adviser on the Peace Process to
amended, the same does not cure its defect. The inclusion of
and academic" principle in view of (a) the grave violation of conduct regular dialogues to seek relevant information,
provisions in the MOA-AD establishing an associative
the Constitution involved; (b) the exceptional character of the comments, advice, and recommendations from peace
relationship between the BJE and the Central Government
situation and paramount public interest; (c) the need to partners and concerned sectors of society.
is, itself, a violation of the Memorandum of Instructions From
formulate controlling principles to guide the bench, the bar,
The President dated March 1, 2001, addressed to the
and the public; and (d) the fact that the case is capable of
Two, Republic Act No. 7160 or the Local Government Code government peace panel. Moreover, as the clause is
repetition yet evading review.
of 1991 requires all national offices to conduct consultations worded, it virtually guarantees that the necessary
before any project or program critical to the environment and amendments to the Constitution and the laws will eventually
The MOA-AD is a significant part of a series of agreements human ecology including those that may call for the eviction be put in place. Neither the GRP Peace Panel nor the
necessary to carry out the GRP-MILF Tripoli Agreement on of a particular group of people residing in such locality, is President herself is authorized to make such a guarantee.
Peace signed by the government and the MILF back in June implemented therein. The MOA-AD is one peculiar program Upholding such an act would amount to authorizing a
2001. Hence, the present MOA-AD can be renegotiated or that unequivocally and unilaterally vests ownership of a vast usurpation of the constituent powers vested only in
another one drawn up that could contain similar or territory to the Bangsamoro people, which could pervasively Congress, a Constitutional Convention, or the people
significantly dissimilar provisions compared to the original. and drastically result to the diaspora or displacement of a themselves through the process of initiative, for the only way
great number of inhabitants from their total environment. that the Executive can ensure the outcome of the
amendment process is through an undue influence or
The Court, however, finds that the prayers for mandamus interference with that process.
have been rendered moot in view of the respondents' action Three, Republic Act No. 8371 or the Indigenous Peoples
in providing the Court and the petitioners with the official Rights Act of 1997 provides for clear-cut procedure for the
copy of the final draft of the MOA-AD and its annexes. recognition and delineation of ancestral domain, which While the MOA-AD would not amount to an international
entails, among other things, the observance of the free and agreement or unilateral declaration binding on the
prior informed consent of the Indigenous Cultural Philippines under international law, respondents' act of
The people's right to information on matters of public guaranteeing amendments is, by itself, already a
Communities/Indigenous Peoples. Notably, the statute does
concern under Sec. 7, Article III of the Constitution is constitutional violation that renders the MOA-AD fatally
not grant the Executive Department or any government
in splendid symmetry with the state policy of full public
agency the power to delineate and recognize an ancestral defective.
disclosure of all its transactions involving public interest
domain claim by mere agreement or compromise.
under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand WHEREFORE, respondents' motion to dismiss is DENIED.
information, while Section 28 recognizes the duty of The invocation of the doctrine of executive privilege as a The main and intervening petitions are GIVEN DUE
officialdom to give information even if nobody demands. The defense to the general right to information or the specific COURSE and hereby GRANTED.
complete and effective exercise of the right to information right to consultation is untenable. The various explicit legal
necessitates that its complementary provision on public provisions fly in the face of executive secrecy. In any event,
disclosure derive the same self-executory nature, subject respondents effectively waived such defense after it
The Memorandum of Agreement on the Ancestral Domain The Antecedents Commenting on the petition, respondent officials raised
Aspect of the GRP-MILF Tripoli Agreement on Peace of threshold issues questioning (1) the petition’s compliance
2001 is declared contrary to law and the Constitution. with the case or controversy requirement for judicial review
In 1961, Congress passed Republic Act No. 3046 (RA
grounded on petitioners’ alleged lack of locus standi and (2)
3046)2 demarcating the maritime baselines of the Philippines
the propriety of the writs of certiorari and prohibition to assail
SO ORDERED. as an archipelagic State.3 This law followed the framing of
the constitutionality of RA 9522. On the merits, respondents
the Convention on the Territorial Sea and the Contiguous
defended RA 9522 as the country’s compliance with the
Zone in 1958 (UNCLOS I),4 codifying, among others, the
G.R No. 187167 August 16, 2011 terms of UNCLOS III, preserving Philippine territory over the
sovereign right of States parties over their "territorial sea,"
KIG or Scarborough Shoal. Respondents add that RA 9522
the breadth of which, however, was left undetermined.
does not undermine the country’s security, environment and
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY- Attempts to fill this void during the second round of
economic interests or relinquish the Philippines’ claim over
LIST REP. RISA HONTIVEROS, PROF. HARRY C. negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Sabah.
ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES Thus, domestically, RA 3046 remained unchanged for nearly
COLLEGE OF LAW STUDENTS, ALITHEA BARBARA five decades, save for legislation passed in 1968 (Republic
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, Act No. 5446 [RA 5446]) correcting typographical errors and Respondents also question the normative force, under
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR reserving the drawing of baselines around Sabah in North international law, of petitioners’ assertion that what Spain
BARRACA, JOSE JAVIER BAUTISTA, ROMINA Borneo. ceded to the United States under the Treaty of Paris were
BERNARDO, VALERIE PAGASA BUENAVENTURA, the islands and all the waters found within the boundaries of
EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, the rectangular area drawn under the Treaty of Paris.
In March 2009, Congress amended RA 3046 by enacting RA
RENE DELORINO, PAULYN MAY DUMAN, SHARON
9522, the statute now under scrutiny. The change was
ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
prompted by the need to make RA 3046 compliant with the We left unacted petitioners’ prayer for an injunctive writ.
RAOULLE OSEN FERRER, CARLA REGINA GREPO,
terms of the United Nations Convention on the Law of the
ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
Sea (UNCLOS III),5 which the Philippines ratified on 27
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL The Issues
February 1984.6 Among others, UNCLOS III prescribes the
RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA
water-land ratio, length, and contour of baselines of
PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK
archipelagic States like the Philippines7 and sets the The petition raises the following issues:
FORT REVILLAS, JAMES MARK TERRY RIDON,
deadline for the filing of application for the extended
JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO,
continental shelf.8 Complying with these requirements, RA
DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA
9522 shortened one baseline, optimized the location of some 1. Preliminarily –
CHRISTINA SANTOS, CRISTINE MAE TABING,
basepoints around the Philippine archipelago and classified
VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA,
adjacent territories, namely, the Kalayaan Island Group 1. Whether petitioners possess locus
and MARCELINO VELOSO III, Petitioners,
(KIG) and the Scarborough Shoal, as "regimes of islands" standi to bring this suit; and
vs.
whose islands generate their own applicable maritime zones.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN 2. Whether the writs of certiorari and
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT Petitioners, professors of law, law students and a legislator, prohibition are the proper remedies to
OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN in their respective capacities as "citizens, taxpayers or x x x assail the constitutionality of RA 9522.
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT legislators,"9 as the case may be, assail the constitutionality
OF BUDGET AND MANAGEMENT, HON. DIONY of RA 9522 on two principal grounds, namely: (1) RA 9522
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF reduces Philippine maritime territory, and logically, the reach 2. On the merits, whether RA 9522 is
THE NATIONAL MAPPING & RESOURCE INFORMATION of the Philippine state’s sovereign power, in violation of unconstitutional.
AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS Article 1 of the 1987 Constitution,10 embodying the terms of
CAPACITY AS REPRESENTATIVE OF THE PERMANENT the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 The Ruling of the Court
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO opens the country’s waters landward of the baselines to
THE UNITED NATIONS,Respondents. maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening On the threshold issues, we hold that (1) petitioners
the country’s nuclear-free policy, and damaging marine possess locus standi to bring this suit as citizens and (2) the
DECISION writs of certiorari and prohibition are proper remedies to test
resources, in violation of relevant constitutional provisions.13
the constitutionality of RA 9522. On the merits, we find no
CARPIO, J.: basis to declare RA 9522 unconstitutional.
In addition, petitioners contend that RA 9522’s treatment of
the KIG as "regime of islands" not only results in the loss of a
The Case large maritime area but also prejudices the livelihood of On the Threshold Issues
subsistence fishermen.14 To buttress their argument of Petitioners Possess Locus
territorial diminution, petitioners facially attack RA 9522 for Standi as Citizens
This original action for the writs of certiorari and prohibition what it excluded and included – its failure to reference either
assails the constitutionality of Republic Act No. 95221(RA the Treaty of Paris or Sabah and its use of UNCLOS III’s
9522) adjusting the country’s archipelagic baselines and Petitioners themselves undermine their assertion of locus
framework of regime of islands to determine the maritime standi as legislators and taxpayers because the petition
classifying the baseline regime of nearby territories. zones of the KIG and the Scarborough Shoal. alleges neither infringement of legislative prerogative15 nor
misuse of public funds,16 occasioned by the passage and technical description, Philippine sovereignty over territorial draw the baselines in conformity with UNCLOS III. The
implementation of RA 9522. Nonetheless, we recognize waters extends hundreds of nautical miles around the baselines cannot be drawn from the boundaries or other
petitioners’ locus standi as citizens with constitutionally Philippine archipelago, embracing the rectangular area portions of the rectangular area delineated in the Treaty of
sufficient interest in the resolution of the merits of the case delineated in the Treaty of Paris.22 Paris, but from the "outermost islands and drying reefs of the
which undoubtedly raises issues of national significance archipelago."24
necessitating urgent resolution. Indeed, owing to the peculiar
Petitioners’ theory fails to persuade us.
nature of RA 9522, it is understandably difficult to find other
UNCLOS III and its ancillary baselines laws play no role in
litigants possessing "a more direct and specific interest" to
the acquisition, enlargement or, as petitioners claim,
bring the suit, thus satisfying one of the requirements for UNCLOS III has nothing to do with the acquisition (or loss) of
diminution of territory. Under traditional international law
granting citizenship standing.17 territory. It is a multilateral treaty regulating, among others,
typology, States acquire (or conversely, lose) territory
sea-use rights over maritime zones (i.e., the territorial waters
through occupation, accretion, cession and
[12 nautical miles from the baselines], contiguous zone [24
The Writs of Certiorari and Prohibition prescription,25 not by executing multilateral treaties on the
nautical miles from the baselines], exclusive economic zone
Are Proper Remedies to Test regulations of sea-use rights or enacting statutes to comply
[200 nautical miles from the baselines]), and continental
the Constitutionality of Statutes with the treaty’s terms to delimit maritime zones and
shelves that UNCLOS III delimits.23 UNCLOS III was the
continental shelves. Territorial claims to land features are
culmination of decades-long negotiations among United
outside UNCLOS III, and are instead governed by the rules
In praying for the dismissal of the petition on preliminary Nations members to codify norms regulating the conduct of
on general international law.26
grounds, respondents seek a strict observance of the offices States in the world’s oceans and submarine areas,
of the writs of certiorari and prohibition, noting that the writs recognizing coastal and archipelagic States’ graduated
cannot issue absent any showing of grave abuse of authority over a limited span of waters and submarine lands RA 9522’s Use of the Framework
discretion in the exercise of judicial, quasi-judicial or along their coasts. of Regime of Islands to Determine the
ministerial powers on the part of respondents and resulting Maritime Zones of the KIG and the
prejudice on the part of petitioners.18 Scarborough Shoal, not Inconsistent
On the other hand, baselines laws such as RA 9522 are
with the Philippines’ Claim of Sovereignty
enacted by UNCLOS III States parties to mark-out specific
Over these Areas
Respondents’ submission holds true in ordinary civil basepoints along their coasts from which baselines are
proceedings. When this Court exercises its constitutional drawn, either straight or contoured, to serve as geographic
power of judicial review, however, we have, by tradition, starting points to measure the breadth of the maritime zones Petitioners next submit that RA 9522’s use of UNCLOS III’s
viewed the writs of certiorari and prohibition as proper and continental shelf. Article 48 of UNCLOS III on regime of islands framework to draw the baselines, and to
remedial vehicles to test the constitutionality of archipelagic States like ours could not be any clearer: measure the breadth of the applicable maritime zones of the
statutes,19 and indeed, of acts of other branches of KIG, "weakens our territorial claim" over that
government.20 Issues of constitutional import are sometimes area.27Petitioners add that the KIG’s (and Scarborough
Article 48. Measurement of the breadth of the territorial sea,
crafted out of statutes which, while having no bearing on the Shoal’s) exclusion from the Philippine archipelagic baselines
the contiguous zone, the exclusive economic zone and the
personal interests of the petitioners, carry such relevance in results in the loss of "about 15,000 square nautical miles of
continental shelf. – The breadth of the territorial sea, the
the life of this nation that the Court inevitably finds itself territorial waters," prejudicing the livelihood of subsistence
contiguous zone, the exclusive economic zone and the
constrained to take cognizance of the case and pass upon fishermen.28 A comparison of the configuration of the
continental shelf shall be measured from archipelagic
the issues raised, non-compliance with the letter of baselines drawn under RA 3046 and RA 9522 and the extent
baselines drawn in accordance with article 47. (Emphasis
procedural rules notwithstanding. The statute sought to be of maritime space encompassed by each law, coupled with a
supplied)
reviewed here is one such law. reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under
Thus, baselines laws are nothing but statutory mechanisms UNCLOS III, belie this view.1avvphi1
RA 9522 is Not Unconstitutional
for UNCLOS III States parties to delimit with precision the
RA 9522 is a Statutory Tool
extent of their maritime zones and continental shelves. In
to Demarcate the Country’s The configuration of the baselines drawn under RA 3046 and
turn, this gives notice to the rest of the international
Maritime Zones and Continental RA 9522 shows that RA 9522 merely followed the
community of the scope of the maritime space and
Shelf Under UNCLOS III, not to basepoints mapped by RA 3046, save for at least nine
submarine areas within which States parties exercise treaty-
Delineate Philippine Territory basepoints that RA 9522 skipped to optimize the location of
based rights, namely, the exercise of sovereignty over
basepoints and adjust the length of one baseline (and thus
territorial waters (Article 2), the jurisdiction to enforce
comply with UNCLOS III’s limitation on the maximum length
Petitioners submit that RA 9522 "dismembers a large portion customs, fiscal, immigration, and sanitation laws in the
of baselines). Under RA 3046, as under RA 9522, the KIG
of the national territory"21 because it discards the pre- contiguous zone (Article 33), and the right to exploit the living
and the Scarborough Shoal lie outside of the baselines
UNCLOS III demarcation of Philippine territory under the and non-living resources in the exclusive economic zone
drawn around the Philippine archipelago. This undeniable
Treaty of Paris and related treaties, successively encoded in (Article 56) and continental shelf (Article 77).
cartographic fact takes the wind out of petitioners’ argument
the definition of national territory under the 1935, 1973 and
branding RA 9522 as a statutory renunciation of the
1987 Constitutions. Petitioners theorize that this
Even under petitioners’ theory that the Philippine territory Philippines’ claim over the KIG, assuming that baselines are
constitutional definition trumps any treaty or statutory
embraces the islands and all the waters within the relevant for this purpose.
provision denying the Philippines sovereign control over
rectangular area delimited in the Treaty of Paris, the
waters, beyond the territorial sea recognized at the time of
baselines of the Philippines would still have to be drawn in
the Treaty of Paris, that Spain supposedly ceded to the Petitioners’ assertion of loss of "about 15,000 square
accordance with RA 9522 because this is the only way to
United States. Petitioners argue that from the Treaty of Paris’ nautical miles of territorial waters" under RA 9522 is similarly
unfounded both in fact and law. On the contrary, RA 9522, SEC. 2. The baselines in the following areas over which the
by optimizing the location of basepoints, increased the Philippines likewise exercises sovereignty and
Philippines’ total maritime space (covering its internal waters, jurisdiction shall be determined as "Regime of Islands"
territorial sea and exclusive economic zone) by 145,216 under the Republic of the Philippines consistent with Article
square nautical miles, as shown in the table below:29 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
3. If intervention is allowed, intervenors The petitioner, through the Solicitor General, contends that in
On or about 3 September 1987, before the said Civil Case issuing the questioned resolutions granting the Motion to
are prepared to prove that if ever any of
No. 0025 could be set for hearing, private respondent Intervene and admitting the Answer-in-Intervention,
the defendants through Marsteel
Simplicio A. Palanca in his own behalf as a stockholder of respondent Sandiganbayan acted in contravention of a
Consolidated, Inc. and Marsteel
Bacolod Real Estate Development Corporation (BREDCO) national or public policy embedded in Executive Order Nos.
Corporation came to have any interest in
and other stockholders similarly situated, filed with the 1, 2, 4 and related issuances, or otherwise acted in a way
Bacolod Real Estate Development
respondent Sandiganbayan a "Motion For Leave To not in accord with law or with the applicable decisions of this
Corporation, it was only by way of
Intervene" 2 attaching thereto their "Answer in Intervention Court, because:
accommodation on the part of BREDCO
." 3
stockholders who transferred their
shareholdings aggregating 70% of the (a) Petitioner, being the sovereign state, cannot be sued
In their motion, private respondents alleged that they be — subscribed capital to enable Marsteel without its consent, and the Intervention is, in legal effect, a
Consolidated to secure adequate suit or counter- suit against the sovereign state, the Republic
financing for the reclamation and port of the Philippines;
... allowed to intervene in the present development project . 4
action and to file the Answer in
intervention hereto attached as Annex (b) The cause of action of intervenors does not fall within the
'A', the said stockholders having a legal The foregoing allegations were further expanded and jurisdiction of the Sandiganbayan as expressly spelled out in
interest in the matter in litigation and in elaborated in the private respondents' Answer in P.D. No. 1606 and Executive Order No. 14;
the disposition of the properties listed in Intervention.
Annex 'A' of the Complaint as BREDCO
(c) Intervenors have no legal interest in the matter in
LOTS and shares of stock in Bacolod
On 2 December 1987, petitioner filed its Reply 5 to Answer In litigation, and the subject matter is not in custodia legis of
Real Estate Development Corporation.
Intervention, while private respondents filed a "Rejoinder to respondent court; and
Reply With Motion To Release BREDCO Lots 6 and also a
In justification, it is further respectfully "Motion To Calendar For Hearing" the motion to release
alleged that. BREDCO lots. 7 (d) Intervenors' claims, as contained in their Motion for
Intervention and Answer-in-Intervention, are claims between
and/or among Ferdinand and Imelda Marcos and their
1. Close examination of the Complaint, On 22 January 1988, respondent court promulgated a cronies, i.e., "members of their immediate family close
in particular par. 12 thereto under 'V. resolution 8 holding in abeyance action on the private relatives, subordinates, and/or business associates,
SPECIFIC AVERMENTS OF respondents' "Rejoinder to Reply with Motion to Release dummies, agents and nominees" and are cognizable not by
DEFENDANTS' ILLEGAL ACTS', makes BREDCO lots", and set the Motion for Leave to Intervene for respondent court but by the regular courts or other for a
no mention at all about BREDCO being hearing on 2 February 1988. Even if there would be multiple litigations, as among
the subject of any anomalous themselves, the legal effect remains, i.e., that there is only
transaction engaged in by any of the one case filed by the Republic against the named
On 11 March 1988, respondent court issued an order 9 giving
defendants, in consequence of which defendants in Civil Case No. 0025, grounded on causes of
petitioner fifteen (1 5) days from 11 March 1988 within which
the listed BREDCO lots could have been action entirely distinct from any cause of action which
to file its opposition and/or comment on the motion to
gotten illegally. It is to be observed, on intervenors may have against Mr. Marcos and his cronies.
The petition is not impressed with merit. jurisdiction of the Sandiganbayan' trial, be permitted by the court, in its discretion, to intervene
and all incidents arising from, incidental in an action, if he has legal interest in the matter in litigation,
to, or related to, such cases necessarily or in the success of either of the parties or an interest
The Rules of Court permit an aggrieved party, generally, to
fall likewise under the Sandiganbayan's against both, or when he is so situated as to be adversely
take a cause and apply for relief with the appellate courts by
exclusive and original jurisdiction, affected by a distribution or other disposition of property in
way of either of two distinct and dissimilar modes through the
subject to review on certiorari the custody of the court or of an officer thereof. 19
broad process of appeal or the limited special civil action of
exclusively by the Supreme Court.
certiorari. An appeal brings up for review errors of
(emphasis supplied)
judgment committed by a court of competent jurisdiction over The Court is not impressed with the contention of petitioner
the subject of the suit or the persons of the parties or any that the intervenors have no legal interest in the matter in
such error committed by the court in the exercise of its In reiterating the aforequoted ruling in six (6) subsequent litigation. In this connection, it would suffice to quote what
jurisdiction amounting to nothing more than an error of cases 16 which were decided jointly, again, the Court held the respondent court said in holding that the intervenors
judgment. On the other hand, the writ of certiorari issues for that- have a legal interest in the matter in litigation. Thus —
the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. The
... the exclusive jurisdiction conferred on Has Palanca shown a proper case for
writ of certiorari cannot legally be used for any other
the Sandiganbayan would evidently intervention by him and his co-
purpose. In terms of its function, the writ of certiorari serves
extend not only to the principal causes stockholders who are similarly situated
to keep a lower court within the bounds of its jurisdiction or to
of action, i.e., the recovery of alleged ill- as he is?
prevent it from committing such a grave abuse of discretion
gotten wealth, but also to 'all incidents
amounting to excess of jurisdiction or to relieve parties from
arising from, incidental to, or related to,
arbitrary acts of courts — acts which courts have no power A narration of the pertinent facts alleged
such cases,' such as the dispute over
or authority in law to perform. 14 by Palanca and the plaintiff indicates the
the sale of the shares, the propriety of
answer.
the issuance of ancillary writs or
Hence, the main issue to be resolved in the present case, provisional remedies relative thereto, the
which is principally a petition for certiorari to annul and set sequestration thereof, which may not be In 1961, BREDCO
aside the questioned resolutions of respondent court is, made the subject of separate actions or was awarded by
whether or not the Sandiganbayan has jurisdiction over the proceedings in another forum. Bacolod City a
action for intervention, or if it has, whether respondent court contract to
acted with grave abuse of discretion amounting to lack or undertake the
Intervention is not an independent action, but is ancillary and
excess of its jurisdiction in rendering the questioned reclamation and
supplemental to an existing litigation. 17 Hence, the private
resolutions. port development of
respondents' action for intervention in Civil Case No. 0025,
the city. As of 1975,
not being an independent action, is merely incidental to, or
a sizeable portion of
In the present case, petitioner merely contends that the related to, the said civil case. Since the respondent
land had already
cause of action of intervenors does not fall within the Sandiganbayan has the exclusive and original jurisdiction
been reclaimed
jurisdiction of the Sandiganbayan as expressly spelled out in over Civil Case No. 0025, it has likewise original and
from the sea and
Presidential Decree No. 1606 and Executive Order No. 14; it exclusive jurisdiction over the private respondents' action for
corresponding
does not claim that respondent court committed grave abuse intervention therein.
torrens titles issued
of discretion amounting to lack or excess of its jurisdiction in
in BREDCO's
rendering the questioned resolutions.
Now, considering that respondent Sandiganbayan has name.
jurisdiction not only over Civil Case No. 0025 but also over
The jurisdiction of the Sandiganbayan has already been the private respondents' action for intervention, any error or
In that year,
settled in Presidential Commission on Good Government vs. irregularity that it may have committed in rendering its
BREDCO engaged
Hon. Emmanuel G. Penal, etc., et al. 15 where the Court held questioned resolutions, in the exercise of its jurisdiction,
MARSTEEL as a
that — amounts to an error of judgment, which is not correctable in
contractor to
the present petition for certiorari but by appeal.
complete the project
... Under Section 2 of the President's with power to
Executive Order No. 14 issued on May Accordingly, this case may be dismissed outright without the negotiate in its
7, 1986, all cases of the Commission Court having to pass upon the other issues raised in the name or jointly
regarding 'the funds, Moneys, Assets, petition. However, considering that the litigation below is of and/or severally
and Properties Illegally Acquired or I great public interest and involves a matter of public policy, with BREDCO for
Misappropriated by Former President the Court has decided to review the other errors allegedly loans to finance the
Ferdinand Marcos, Mrs. Imelda committed by respondent court in rendering its questioned reclamation and
Romualdez Marcos, their Close resolutions. port development,
Relatives, Subordinates, Business and to mortgage all
Associates, Dummies, Agents, or reclaimed lots and
In this jurisdiction, the law on "intervention" is found in the
Nominees whether civil or criminal, are other assets of the
Rules of Court. 18 Thus, a person may, before or during a
lodged within the 'exclusive and original project as security.
For its services, In September 1986, 'to intervene in an action, if he has legal
MARSTEEL shall the Presidential interest in the matter in litigation.'
receive 65% of the Commission on
excess of all Good Government
As a general rule
revenues over all (PCGG)
the right to
disbursements. sequestered all
intervene exists in
Accordingly, assets, properties,
favor of one who
BREDCO conveyed records and
claims to be the
to MARSTEEL 65% documents' of
owner or to have
of each lot already MARSTEEL, MCI,
some interest in the
reclaimed and that and BREDCO'. In
property which is
to be reclaimed. July 1987, the
the subject of
complaint at bar
litigation, and this
was filed and
In 1977, without particular
expanded in March
MARSTEEL regard to the value
1988. The
assigned to MCI, of the property or
pleadings, original
which owned 100% the right claimed
and expanded,
of its capital stock, therein. A third party
allege that the
all its rights, may intervene in a
defendants, acting
interests, sequestration suit
singly or
obligations, and involving title to
collectively,
undertakings in the personal property,
amassed ill-gotten
project. To enable and have his claims
wealth listed in
MCI to expand its to the possession of
Annex 'A' thereof,
base of negotiation the property
among which are
for loans needed in vindicated therein
the BREDCO lots
the reclamation and So, in an action for
and shares of stock,
port development possession of real
and pray that the ill-
the BREDCO or personal
gotten wealth be
stockholders property, an
reconveyed to the
transferred to MCI intervenor may be
plaintiff, plus
their respective admitted on the
damages.
shares of stock ground that he is an
Significantly,
amounting to 70% owner thereof,
however, the bodies
of the capital stock either to assist in
of the complaints do
of BREDCO. In the defense, or to
not mention
return, they 'shall be claim the property
anything about
entitled to a share for himself, or to
BREDCO, its
of 35% in excess of obtain some other
project, lots, and
all revenues over all relief germane to
stocks, nor about
disbursements of the action.' (59 Am
MCI.
the projects,' it Jur 2d, Parties, Sec.
being understood 152, p. 585,
that payment of the Under these alleged facts, Palanca has
corresponding established a proper case for
Secondly, the same Section 2, Rule 12,
share shall be due intervention. Firstly, he and his co-
further provides that intervention by a
to BREDCO stockholders have a legal interest in the
person may be permitted 'when he is so
stockholders as matter in litigation, namely, their 70% of
situated as to be adversely affected by a
owners of existing the capital stock of BREDCO, which
distribution or other disposition of
interests in the they transferred to MCI by way of
property in the custody of the court or of
project, regardless alleged accommodation, or its
an officer thereof.' On this point, the
of the fact that by equivalent of 35% of the excess of all
Supreme Court observed:
implementation of revenues over all disbursements, to
this AGREEMENT, which they are entitled 'as owners of
they ceased to be existing interests in the project.' Section We shall now speak
stockholders of 2, Rule 12, Revised Rules of Court, of the case where
BREDCO. provides that a person may be permitted the stranger desires
to intervene for the
purpose of Idly by and see the the fund or property
asserting a property property disposed in question, the
right in the res, or of without asserting motion to intervene
thing, which is the his rights. Though it should be granted,
subject-matter of be granted that the especially if such
the ligitation, litigation would not interest cannot be
without becoming a be technically otherwise properly
formal plaintiff or binding on him, protected. (Joaquin
defendant, and because of his not v. Herrera, 37 Phil.
without acquiring being a party, yet it 705, 722-724)
the control over the might well happen
course of a that complications
Here, the BREDCO lots and stocks were
litigation, which is would ensue
sequestered and are now in custodia
conceded to the whereby his rights
legis (Bernas, The Constitution of the
main actions (sic) would be materially
Republic of the Philippines, An
therein. The mode prejudiced. For
Annotated Text, 1987 ed., p. 129,
of intervention to instance, the
footnote 42). From the facts averred by
which reference is subject-matter of
Palanca and the plaintiff, it is easy to
now made is the litigation might
see that in the event We decide to order
denominated in consist of a fund to
the reconveyance of those assets to the
equity procedure he distributed, and
plaintiff, Palanca and his co-
the intervention pro the conditions might
stockholders in BREDCO stand to be
interesse suo and is be such that if it
adversely affected.
somewhat were turned over to
analogous to the the particular litigant
trial of a right of who should appear And thirdly, the legal interest of Palanca
property in an to have the better and his co-stockholders in the matter in
action of law, its right in the original litigation and the possibility of a
purpose being to action, the person judgment ordering reconveyance in
enable a person really having a favor of the plaintiff, invest them with
whose property gets superior title might legal interest in the success of the
into the clutches of be left without defendants, at least insofar as the
a court, in a redress. BREDCO lots and shares are
controversy Accordingly concerned. Section 2, Rule 12, also
between others, to provision is made permits intervention by a person who
go into court and to whereby persons has legal interest in the success of
procure it or its who have not been either of the parties. 20
proceeds to be joined as parties in
surrendered to him. the original
The petitioner's contention that the State cannot be sued
It often happens proceedings may
that a person who intervene and without its consent and that private respondents' action for
really owns assert a right intervention is, in legal effect, a suit or counter-suit against
the sovereign is also untenable.
property, or has a antagonistic or
superior lien or superior to that of
other interest in it, one or both of the The Rules of Court 21 provide that the intervention shall be
sees a litigation parties. (Bosworth made by complaint filed and served in regular form, and may
spring up between vs. Terminal etc. be answered as if it where an original complaint; but where
others who assert Assoc. of St. Louis, the intervenor unites with the defendant in resisting the
rights in or 174 U.S. 182,187, claims of the plaintiff, the intervention may be made in the
concerning it. If the 43 L. ed., 941, 943). form of an answer to the complaint. In order words, a third
court takes As regards the right person who makes himself a party to an existing litigation,
possession of the to intervene in this may either join the plaintiff in claiming what is sought in the
res, or otherwise manner, it may be filing a complaint in intervention, or by uniting with the
gets jurisdiction stated that if the defendant in resisting the claims of the plaintiff, by filing an
over it in such a party desiring to answer in intervention.
controversy, the intervene shows a
real owner is not legitimate and
compelled to stand proper interest in In Froilan v. Pan Oriental Shipping Co., 22 the plaintiff therein
Fernando A. Froilan filed a complaint against the defendant,
Pan Oriental Shipping Co. The Republic of the Philippines surrendering its privileged position and ACCORDINGLY, the petition in the present case is hereby
intervened by filing a complaint in intervention. Thereafter, coming down to the level of the DISMISSED.
the defendant filed its answer to the complaint in defendants what happened in the case
intervention, and set up a counterclaim against the Republic of Froilan vs. Pan Oriental Shipping Co.,
SO ORDERED.
of the Philippines. The trial court dismissed the defendants et al.-95 Phil. 905 cited by the plaintiff
counterclaim against the Republic on the ground, among but one where the State, as one of the
others, that the state is immune from suit. On appeal, this defendants merely resisted a claim G.R. No. 206510 September 16, 2014
Court held that the dismissal of the counterclaim was against it precisely on the ground,
untenable, because by filing its complaint in intervention the among others, of its privileged position
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto
Government in effect waived its right to non-suability. which exempts it from suit. (emphasis
Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ,
supplied).
JR., Bishop-Emeritus of Caloocan, FRANCES Q.
In another case, Lim vs. Brownell, Jr. and Kagawa, 23 the QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE,
plaintiff Benito E. Lim, as administrator of the intestate estate In the present case, the private respondents intervened in MARIA CAROLINA P. ARAULLO, RENATO M. REYES,
of Arsenia Enriquez, filed a complaint in the Court of First Civil Case No. 0025 merely to unite with the defendants JR., Bagong Alyansang Makabayan, HON. NERI JAVIER
Instance of Manila against the Alien Property Administrator therein in resisting the claims of petitioner, as plaintiff, and COLMENARES, Bayan Muna Partylist, ROLAND G.
(later substituted by the Attorney General of the United for that reason asked for no affirmative relief against any SIMBULAN, PH.D., Junk VF A Movement, TERESITA R.
States) for the recovery of four (4) parcels of land (which party in their answer in intervention. In other words, this is PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan
were subsequently transferred to the Republic of the not a case where the private respondents take the initiative Party-list, PETER SJ. GONZALES, Pamalakaya,
Philippines) with a prayer for the payment of back rentals. in an action against petitioner by filing a complaint in GIOVANNI A. TAPANG, PH. D., Agham, ELMER C.
The Republic of the Philippines intervened in the case. The intervention or a complaint. As observed by respondent LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
defendant Attorney General of the United States and the Sandiganbayan: Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
defendant- intervenor Republic of the Philippines each filed CONCEPCION, MARY JOAN A. GUAN, NESTOR T.
an answer, alleging by way of affirmative defense, among BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
In intervening, Palanca and his co-
others, that the lower court had no jurisdiction over the claim vs.
stockholders have for their purpose to
for rentals since the action in that regard constituted a suit SCOTT H. SWIFT in his capacity as Commander of the
exclude the BREDCO lots and stocks or,
against the Republic to which it had not given its consent. US. 7th Fleet, MARK A. RICE in his capacity as
at least, their 35% interest in the
The trial court dismissed the complaint for lack of jurisdiction. Commanding Officer of the USS Guardian, PRESIDENT
BREDCO project from any possible
On appeal, this Court affirmed, with the following reasons: BENIGNO S. AQUINO III in his capacity as Commander-
judgment directing reconveyance of the
in-Chief of the Armed Forces of the Philippines, HON.
alleged ill-gotten wealth to the plaintiff.
ALBERT F. DEL ROSARIO, Secretary, pepartment of
The claim for damages for the use of the They do not pray for damages against
Foreign Affair.s, HON. PAQUITO OCHOA, JR.,
property against the intervenor the latter. In effect, they occupy a
Executiv~.:Secretary, Office of the President, . HON.
defendant Republic of the Philippines to defensive position as regards those
VOLTAIRE T. GAZMIN, Secretary, Department of
which it was transferred, likewise, shares of stock or interest. The fact that
National Defense, HON. RAMON JESUS P. P AJE,
cannot be maintained because of the they interjected themselves into his
Secretary, Department of Environment and Natural
immunity of the state from suit. The litigation at their own initiative does not
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
claim obviously constitutes a charge alter the essential nature of their
Philippine Navy Flag Officer in Command, Armed Forces
against, or financial liability to, the intervention." 24
of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Government and consequently cannot
Commandant, Philippine Coast Guard, COMMODORE
be entertained by the courts except with
Private respondents' action for intervention in Civil Case No. ENRICO EFREN EVANGELISTA, Philippine Coast Guard
the consent of said government. (Syquia
0025 is not, therefore, a suit or counter-suit against petitioner Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO,
vs. Almeda Lopez, 84 Phil. 312; 47 Off.
Republic of the Philippines. Commandant of Armed Forces of the Philippines
Gaz., 665; Compania General de
Command and LT. GEN. TERRY G. ROBLING, US Marine
Tabacos vs. Govt. of the PI 45 Phil.,
Corps Forces. Pacific and Balikatan 2013 Exercise Co-
663). Plaintiff argues that by its Having arrived at the above conclusions, the Court finds no
Director, Respondents.
intervention, the Republic of the need to further discuss the petitioner's pretense that the
Philippines, in effect, waived its right of private respondents' claims are claims as between and/or
non-suability, but it will be remembered among Ferdinand and Imelda Marcos, et al., and that the DECISION
that the Republic intervened in the case same is not cognizable by respondent Sandiganbayan but by
merely to unite with the defendant the regular courts. It suffices to state that, as already stated,
VILLARAMA, JR, J.:
Attorney General of the United States in in intervening in Civil Case No. 0025, private respondents
resisting plaintiffs claims, and for that merely joined the defendants therein in resisting the claims
reason asked no affirmative relief of petitioner, as plaintiff, and that they asked no affirmative Before us is a petition for the issuance of a Writ of Kalikasan
against any party in the answer in relief against any party in their answer in intervention. They with prayer for the issuance of a Temporary Environmental
intervention. x x x. Clearly, this is not a do not appear to have any controversy with the defendants, Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-
case where the State takes the initiative Ferdinand and Imelda Marcos, et al. SC, otherwise known as the Rules of Procedure for
in an action against a private party by Environmental Cases (Rules), involving violations of
filing a complaint in intervention, thereby environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the Bay for the purpose of routine ship replenishment, events violate their constitutional rights to a balanced and
Tubbataha Reefs. maintenance, and crew liberty."4 On January 6, 2013, the healthful ecology. They also seek a directive from this Court
ship left Sasebo, Japan for Subic Bay, arriving on January for the institution of civil, administrative and criminal suits for
13, 2013 after a brief stop for fuel in Okinawa, acts committed in violation of environmental laws and
Factual Background
Japan.1âwphi1 regulations in connection with the grounding incident.
The CTA ruled that prior application for a tax treaty relief is Even if we had affirmed the CTA in Mirant, the doctrine laid
THE COURT’S RULING
mandatory, and noncompliance with this prerequisite is fatal down in that Decision cannot bind this Court in cases of a
to the taxpayer’s availment of the preferential tax rate. similar nature. There are differences in parties, taxes,
The Petition is meritorious. taxable periods, and treaties involved; more importantly, the
disposition of that case was made only through a minute
We disagree.
resolution.
Under Section 28(A)(5) of the NIRC, any profit remitted to its
head office shall be subject to a tax of 15% based on the
A minute resolution is not a binding precedent
total profits applied for or earmarked for remittance without Tax Treaty vs. RMO No. 1-2000
any deduction of the tax component. However, petitioner
invokes paragraph 6, Article 10 of the RP-Germany Tax At the outset, this Court’s minute resolution on Mirant is not a
Our Constitution provides for adherence to the general
Treaty, which provides that where a resident of the Federal binding precedent. The Court has clarified this matter in
principles of international law as part of the law of the
Republic of Germany has a branch in the Republic of the Philippine Health Care Providers, Inc. v. Commissioner of
land.15The time-honored international principle of pacta sunt
Philippines, this branch may be subjected to the branch Internal Revenue14 as follows:
servanda demands the performance in good faith of treaty
profits remittance tax withheld at source in accordance with
obligations on the part of the states that enter into the
Philippine law but shall not exceed 10% of the gross amount
It is true that, although contained in a minute resolution, our agreement. Every treaty in force is binding upon the parties,
of the profits remitted by that branch to the head office.
dismissal of the petition was a disposition of the merits of the and obligations under the treaty must be performed by them
case. When we dismissed the petition, we effectively in good faith.16 More importantly, treaties have the force and
By virtue of the RP-Germany Tax Treaty, we are bound to affirmed the CA ruling being questioned. As a result, our effect of law in this jurisdiction.17
extend to a branch in the Philippines, remitting to its head ruling in that case has already become final. When a minute
office in Germany, the benefit of a preferential rate resolution denies or dismisses a petition for failure to comply
Tax treaties are entered into "to reconcile the national fiscal
equivalent to 10% BPRT. with formal and substantive requirements, the challenged
legislations of the contracting parties and, in turn, help the
decision, together with its findings of fact and legal
taxpayer avoid simultaneous taxations in two different
conclusions, are deemed sustained. But what is its effect on
On the other hand, the BIR issued RMO No. 1-2000, which jurisdictions."18 CIR v. S.C. Johnson and Son, Inc. further
other cases?
requires that any availment of the tax treaty relief must be clarifies that "tax conventions are drafted with a view towards
preceded by an application with ITAD at least 15 days before the elimination of international juridical double taxation,
the transaction. The Order was issued to streamline the With respect to the same subject matter and the same which is defined as the imposition of comparable taxes in
processing of the application of tax treaty relief in order to issues concerning the same parties, it constitutes res two or more states on the same taxpayer in respect of the
improve efficiency and service to the taxpayers. Further, it judicata. However, if other parties or another subject matter same subject matter and for identical periods. The apparent
also aims to prevent the consequences of an erroneous (even with the same parties and issues) is involved, the rationale for doing away with double taxation is to encourage
interpretation and/or application of the treaty provisions (i.e., minute resolution is not binding precedent. Thus, in CIR v. the free flow of goods and services and the movement of
filing a claim for a tax refund/credit for the overpayment of Baier-Nickel, the Court noted that a previous case, CIR v. capital, technology and persons between countries,
taxes or for deficiency tax liabilities for underpayment).13 Baier-Nickel involving the same parties and the same issues, conditions deemed vital in creating robust and dynamic
was previously disposed of by the Court thru a minute economies. Foreign investments will only thrive in a fairly
resolution dated February 17, 2003 sustaining the ruling of predictable and reasonable international investment climate
The crux of the controversy lies in the implementation of and the protection against double taxation is crucial in
the CA. Nonetheless, the Court ruled that the previous case
RMO No. 1-2000. creating such a climate."19
"ha(d) no bearing" on the latter case because the two cases
involved different subject matters as they were concerned
Petitioner argues that, considering that it has met all the with the taxable income of different taxable years.
Simply put, tax treaties are entered into to minimize, if not
conditions under Article 10 of the RP-Germany Tax Treaty, eliminate the harshness of international juridical double
the CTA erred in denying its claim solely on the basis of
Besides, there are substantial, not simply formal, distinctions taxation, which is why they are also known as double tax
RMO No. 1-2000. The filing of a tax treaty relief application is treaty or double tax agreements.
between a minute resolution and a decision. The
not a condition precedent to the availment of a preferential
constitutional requirement under the first paragraph of
tax rate. Further, petitioner posits that, contrary to the ruling
Section 14, Article VIII of the Constitution that the facts and
of the CTA, Mirant is not a binding judicial precedent to deny "A state that has contracted valid international obligations is
the law on which the judgment is based must be expressed
a claim for refund solely on the basis of noncompliance with bound to make in its legislations those modifications that
clearly and distinctly applies only to decisions, not to minute
RMO No. 1-2000. may be necessary to ensure the fulfillment of the obligations
resolutions. A minute resolution is signed only by the clerk of
undertaken."20 Thus, laws and issuances must ensure that
court by authority of the justices, unlike a decision. It does
the reliefs granted under tax treaties are accorded to the
Respondent counters that the requirement of prior not require the certification of the Chief Justice. Moreover,
parties entitled thereto. The BIR must not impose additional
application under RMO No. 1-2000 is mandatory in unlike decisions, minute resolutions are not published in the
requirements that would negate the availment of the reliefs
character. RMO No. 1-2000 was issued pursuant to the Philippine Reports. Finally, the proviso of Section 4(3) of
provided for under international agreements. More so, when The underlying principle of prior application with the BIR remitted to Frankfurt Head Office the amount of
the RP-Germany Tax Treaty does not provide for any pre- becomes moot in refund cases, such as the present case, EUR5,174,847.38 (or ₱330,175,961.88 at 63.804
requisite for the availment of the benefits under said where the very basis of the claim is erroneous or there is Peso/Euro) representing its 2002 profits
agreement. excessive payment arising from non-availment of a tax treaty remittance.22
relief at the first instance. In this case, petitioner should not
be faulted for not complying with RMO No. 1-2000 prior to
Likewise, it must be stressed that there is nothing in RMO The amount of PHP 67,688,553.51 paid by petitioner
the transaction. It could not have applied for a tax treaty
No. 1-2000 which would indicate a deprivation of entitlement represented the 15% BPRT on its RBU net income, due for
relief within the period prescribed, or 15 days prior to the
to a tax treaty relief for failure to comply with the 15-day remittance to DB Germany amounting to PHP
payment of its BPRT, precisely because it erroneously paid
period. We recognize the clear intention of the BIR in 451,257,023.29 for 2002 and prior taxable years.23
the BPRT not on the basis of the preferential tax rate under
implementing RMO No. 1-2000, but the CTA’s outright denial
of a tax treaty relief for failure to strictly comply with the
Likewise, both the administrative and the judicial actions
prescribed period is not in harmony with the objectives of the the RP-Germany Tax Treaty, but on the regular rate as
were filed within the two-year prescriptive period pursuant to
contracting state to ensure that the benefits granted under prescribed by the NIRC. Hence, the prior application
Section 229 of the NIRC.24
tax treaties are enjoyed by duly entitled persons or requirement becomes illogical. Therefore, the fact that
corporations. petitioner invoked the provisions of the RP-Germany Tax
Treaty when it requested for a confirmation from the ITAD Clearly, there is no reason to deprive petitioner of the benefit
before filing an administrative claim for a refund should be of a preferential tax rate of 10% BPRT in accordance with
Bearing in mind the rationale of tax treaties, the period of
deemed substantial compliance with RMO No. 1-2000. the RP-Germany Tax Treaty.
application for the availment of tax treaty relief as required by
RMO No. 1-2000 should not operate to divest entitlement to
the relief as it would constitute a violation of the duty Corollary thereto, Section 22921 of the NIRC provides the Petitioner is liable to pay only the amount of PHP
required by good faith in complying with a tax treaty. The taxpayer a remedy for tax recovery when there has been an 45,125,702.34 on its RBU net income amounting to PHP
denial of the availment of tax relief for the failure of a erroneous payment of tax.1âwphi1 The outright denial of 451,257,023.29 for 2002 and prior taxable years, applying
taxpayer to apply within the prescribed period under the petitioner’s claim for a refund, on the sole ground of failure to the 10% BPRT. Thus, it is proper to grant petitioner a refund
administrative issuance would impair the value of the tax apply for a tax treaty relief prior to the payment of the BPRT, ofthe difference between the PHP 67,688,553.51 (15%
treaty. At most, the application for a tax treaty relief from the would defeat the purpose of Section 229. BPRT) and PHP 45,125,702.34 (10% BPRT) or a total of
BIR should merely operate to confirm the entitlement of the PHP 22,562,851.17.
taxpayer to the relief.
Petitioner is entitled to a refund
WHEREFORE, premises considered, the instant Petition is
The obligation to comply with a tax treaty must take GRANTED. Accordingly, the Court of Tax Appeals En Banc
It is significant to emphasize that petitioner applied – though
precedence over the objective of RMO No. 1- Decision dated 29 May 2009 and Resolution dated 1 July
belatedly – for a tax treaty relief, in substantial compliance
2000.1âwphi1 Logically, noncompliance with tax treaties has 2009 are REVERSED and SET ASIDE. A new one is hereby
with RMO No. 1-2000. A ruling by the BIR would have
negative implications on international relations, and unduly entered ordering respondent Commissioner of Internal
confirmed whether petitioner was entitled to the lower rate of
discourages foreign investors. While the consequences Revenue to refund or issue a tax credit certificate in favor of
10% BPRT pursuant to the RP-Germany Tax Treaty.
sought to be prevented by RMO No. 1-2000 involve an petitioner Deutsche Bank AG Manila Branch the amount of
administrative procedure, these may be remedied through TWENTY TWO MILLION FIVE HUNDRED SIXTY TWO
other system management processes, e.g., the imposition of Nevertheless, even without the BIR ruling, the CTA Second THOUSAND EIGHT HUNDRED FIFTY ONE PESOS AND
a fine or penalty. But we cannot totally deprive those who are Division found as follows: SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine
entitled to the benefit of a treaty for failure to strictly comply currency, representing the erroneously paid BPRT for 2002
with an administrative issuance requiring prior application for and prior taxable years.
Based on the evidence presented, both documentary and
tax treaty relief.
testimonial, petitioner was able to establish the following
facts: SO ORDERED.
Prior Application vs. Claim for Refund
a. That petitioner is a branch office in the G.R. No. 190582 April 8, 2010
Again, RMO No. 1-2000 was implemented to obviate any Philippines of Deutsche Bank AG, a corporation
erroneous interpretation and/or application of the treaty organized and existing under the laws of the
ANG LADLAD LGBT PARTY represented herein by its
provisions. The objective of the BIR is to forestall Federal Republic of Germany;
Chair, DANTON REMOTO, Petitioner,
assessments against corporations who erroneously availed
themselves of the benefits of the tax treaty but are not legally vs.
b. That on October 21, 2003, it filed its Monthly COMMISSION ON ELECTIONS Respondent.
entitled thereto, as well as to save such investors from the
tedious process of claims for a refund due to an inaccurate Remittance Return of Final Income Taxes
application of the tax treaty provisions. However, as earlier Withheld under BIR Form No. 1601-F and remitted
DECISION
the amount of ₱67,688,553.51 as branch profits
discussed, noncompliance with the 15-day period for prior
application should not operate to automatically divest remittance tax with the BIR; and
entitlement to the tax treaty relief especially in claims for DEL CASTILLO, J.:
refund. c. That on October 29, 2003, the Bangko Sentral
ng Pilipinas having issued a clearance, petitioner
... [F]reedom to differ is not limited to things that do not Ladlad again filed a Petition5 for registration with the indulged in sin and crime!" (7:84) "He said: "O my Lord! Help
matter much. That would be a mere shadow of freedom. The COMELEC. Thou me against people who do mischief" (29:30).
test of its substance is the right to differ as to things that
touch the heart of the existing order.
Before the COMELEC, petitioner argued that the LGBT As correctly pointed out by the Law Department in its
community is a marginalized and under-represented sector Comment dated October 2, 2008:
Justice Robert A. Jackson that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of
The ANG LADLAD apparently advocates sexual immorality
exclusion, discrimination, and violence; that because of
West Virginia State Board of Education v. Barnette1 as indicated in the Petition’s par. 6F: ‘Consensual
negative societal attitudes, LGBTs are constrained to hide
partnerships or relationships by gays and lesbians who are
their sexual orientation; and that Ang Ladlad complied with
already of age’. It is further indicated in par. 24 of the Petition
One unavoidable consequence of everyone having the the 8-point guidelines enunciated by this Court in Ang
which waves for the record: ‘In 2007, Men Having Sex with
freedom to choose is that others may make different choices Bagong Bayani-OFW Labor Party v. Commission on
Men or MSMs in the Philippines were estimated as 670,000
– choices we would not make for ourselves, choices we may Elections.6 Ang Ladlad laid out its national membership base
(Genesis 19 is the history of Sodom and Gomorrah).
disapprove of, even choices that may shock or offend or consisting of individual members and organizational
anger us. However, choices are not to be legally prohibited supporters, and outlined its platform of governance.7
merely because they are different, and the right to disagree Laws are deemed incorporated in every contract, permit,
and debate about important questions of public policy is a license, relationship, or accreditation. Hence, pertinent
On November 11, 2009, after admitting the petitioner’s
core value protected by our Bill of Rights. Indeed, our provisions of the Civil Code and the Revised Penal Code are
evidence, the COMELEC (Second Division) dismissed the
democracy is built on genuine recognition of, and respect for, deemed part of the requirement to be complied with for
Petition on moral grounds, stating that:
diversity and difference in opinion. accreditation.
The President Pro Tempore. Yes, with the permission of the The President Pro Tempore. To the amendment.
I think that the sponsor, based on our earlier conversations,
other senators.
concurs with this position. I am sure that the men in this
Chamber who love their women in their lives so dearly will Senator Sotto. – more than the women, the children are very
agree with this representation. Whether we like it or not, it is Senator Sotto. Yes, with the permission of the two ladies on much abused. As a matter of fact, it is not limited to minors.
an unequal world. Whether we like it or not, no matter how the Floor. The abuse is not limited to seven, six, 5-year-old children. I
empowered the women are, we are not given equal have seen 14, 15-year-old children being abused by their
opportunities especially in the domestic environment where fathers, even by their mothers. And it breaks my heart to find
the macho Filipino man would always feel that he is stronger, The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
out about these things.
more superior to the Filipino woman. recognized.
In an average 12-month period in this country, approximately The Philippines has been in cadence with the half – and full
two million women are the victims of severe assaults by their – steps of all these women's movements. No less
Incestuous Rape than 38 46 26 22 28 27 19
male partners. In a 1985 survey, women reported that nearly Section 14, Article II of our 1987 Constitution mandates the
one of every eight husbands had assaulted their wives State to recognize the role of women in nation building and
during the past year. The [American Medical Association] to ensure the fundamental equality before the law of women
views these figures as "marked underestimates," because and men. Our Senate has ratified the CEDAWAttempted
as well
Rape
as the 194 148 185 147 204 167 26
the nature of these incidents discourages women from Convention on the Rights of the Child and its two protocols.
reporting them, and because surveys typically exclude the To cap it all, Congress, on March 8, 2004, enacted Rep. Act
very poor, those who do not speak English well, and women No. 9262, entitled "An Act Defining Violence Against Women
who are homeless or in institutions or hospitals when the Acts Measuresoffor
and Their Children, Providing for Protective 580 536 382 358 445 485 74
survey is conducted. According to the AMA, "researchers on Victims, Prescribing Penalties therefor Lasciviousness
and for other
family violence agree that the true incidence of partner Purposes." (Citations omitted)
violence is probably double the above estimates; or four
million severely assaulted women per year." Physical
B. Women are the "usual" and "most likely" 3,553 2,335 1,892 1,505 1,307 1,498 2,
Injuries
Studies on prevalence suggest that from one-fifth to one-
victims of violence.
third of all women will be physically assaulted by a partner or
ex-partner during their lifetime... Thus on an average day in Sexual
the United States, nearly 11,000 women are severely At the time of the presentation of Senate Bill No. 2723, 53 37 38 46 18 54 83
Harassment
assaulted by their male partners. Many of these incidents official statistics on violence against women and children
involve sexual assault... In families where wife beating takes show that –
place, moreover, child abuse is often present as well.
RA 9262 218 924 1,269 2,387 3,599 5,285 9,
x x x physical injuries had the highest number of cases at
Other studies fill in the rest of this troubling picture. Physical 5,058 in 2002 representing 55.63% of total cases reported
violence is only the most visible form of abuse. Psychological (9,903). And for the first semester of 2003, there were 2,381
abuse, particularly forced social and economic isolation of reported cases out of 4,354 cases which Threats
represent 54.31%. 319 223 199 182 220 208 37
women, is also common. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare
and Development (DSWD) for the year 2002, there are 1,417
Many victims of domestic violence remain with their abusers,
physically abused/maltreated cases out ofSeduction
the total of 5,608 62 19 29 30 19 19 25
perhaps because they perceive no superior
cases. xxx (T)here are 1,091 DSWD cases out of a total
alternative...Many abused women who find temporary refuge
number of 3,471 cases for the first semester of 2003.
in shelters return to their husbands, in large part because
Female violence comprised more than 90% of all forms of
Concubinage 121 102 93 109 109 99 15
they have no other source of income... Returning to one's
abuse and violence and more than 90% of these reported
abuser can be dangerous. Recent Federal Bureau of
cases were committed by the women's intimate partners
Investigation statistics disclose that 8.8 percent of all
such as their husbands and live-in partners.73
homicide victims in the United States are killed by their RA 9208 17 11 16 24 34 152 19
spouses...Thirty percent of female homicide victims are killed
by their male partners. Recently, the Philippine Commission on Women presented
comparative statistics on violence against women across an
Abduction
eight-year period from 2004 to August of 2011 with violations
Finally in 1994, the United States Congress enacted the 16 34 23 28 18 25 22
under R.A. 9262 ranking first among /Kidnapping
the different29VAW
Violence Against Women Act.
categories since its implementation in 2004,74 thus:
In a recent case resolved on March 9, 2011, we fined RTC In 1979, the U.N. General Assembly adopted the CEDAW,
While there are, indeed, relatively few cases of violence and
Judge Venancio J. Amila for Conduct Unbecoming of a which the Philippines ratified on August 5, 1981.
abuse perpetrated against men in the Philippines, the same
Judge. He used derogatory and irreverent language in Subsequently, the Optional Protocol to the CEDAW was also
cannot render R.A. 9262 invalid.
reference to the complainant in a petition for TPO and PPO ratified by the Philippines on October 6, 2003.86 This
under R.A. 9262, calling her as "only a live-in partner" and Convention mandates that State parties shall accord to
In a 1960 case involving the violation of a city ordinance presenting her as an "opportunist" and a "mistress" in an women equality with men before the law87 and shall take all
requiring drivers of animal-drawn vehicles to pick up, gather "illegitimate relationship." Judge Amila even called her a appropriate measures to eliminate discrimination against
and deposit in receptacles the manure emitted or discharged "prostitute," and accused her of being motivated by women in all matters relating to marriage and family relations
by their vehicle-drawing animals in any public highways, "insatiable greed" and of absconding with the contested on the basis of equality of men and women. 88 The
streets, plazas, parks or alleys, said ordinance was property.81 Such remarks betrayed Judge Amila's prejudices Philippines likewise ratified the Convention on the Rights of
challenged as violative of the guaranty of equal protection of and lack of gender sensitivity. the Child and its two protocols.89 It is, thus, bound by said
laws as its application is limited to owners and drivers of Conventions and their respective protocols.
vehicle-drawing animals and not to those animals, although
The enactment of R.A. 9262 aims to address the
not utilized, but similarly pass through the same streets.
discrimination brought about by biases and prejudices III. The classification is not limited to existing
against women. As emphasized by the CEDAW Committee
The ordinance was upheld as a valid classification for the on the Elimination of Discrimination against Women,
conditions only, and apply equally to all members
reason that, while there may be non-vehicle-drawing animals addressing or correcting discrimination through specific
that also traverse the city roads, "but their number must be measures focused on women does not discriminate against
negligible and their appearance therein merely occasional, men.82Petitioner's contention,83 therefore, that R.A. 9262 is Moreover, the application of R.A. 9262 is not limited to the
compared to the rig-drawing ones, as not to constitute a discriminatory and that it is an "anti-male," "husband- existing conditions when it was promulgated, but to future
menace to the health of the community."77 The mere fact that bashing," and "hate-men" law deserves scant consideration. conditions as well, for as long as the safety and security of
the legislative classification may result in actual inequality is As a State Party to the CEDAW, the Philippines bound itself women and their children are threatened by violence and
not violative of the right to equal protection, for every to take all appropriate measures "to modify the social and abuse.
classification of persons or things for regulation by law cultural patterns of conduct of men and women, with a view
produces inequality in some degree, but the law is not to achieving the elimination of prejudices and customary and
thereby rendered invalid.78 all other practices which are based on the idea of the R.A. 9262 applies equally to all women and children who
inferiority or the superiority of either of the sexes or on suffer violence and abuse. Section 3 thereof defines VAWC
as:
stereotyped roles for men and women."84 Justice Puno
C. Gender bias and prejudices
correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a x x x any act or a series of acts committed by any person
From the initial report to the police through prosecution, trial, public offense will require the development of a distinct against a woman who is his wife, former wife, or against a
and sentencing, crimes against women are often treated mindset on the part of the police, the prosecution and the woman with whom the person has or had a sexual or dating
differently and less seriously than other crimes. This was judges."85 relationship, or with whom he has a common child, or
argued by then United States Senator Joseph R. Biden, Jr., against her child whether legitimate or illegitimate, within or
now Vice President, chief sponsor of the Violence Against without the family abode, which result in or is likely to result
II. The classification is germane to the purpose of the law.
in physical, sexual, psychological harm or suffering, or wherein the other spouse/partner the woman encompasses even lesbian relationships.
economic abuse including threats of such acts, battery, objects on valid, serious and moral Moreover, while the law provides that the offender be related
assault, coercion, harassment or arbitrary deprivation of grounds as defined in Article 73 of the or connected to the victim by marriage, former marriage, or a
liberty. It includes, but is not limited to, the following acts: Family Code; sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised
Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
A. "Physical Violence" refers to acts that include bodily or 2. deprivation or threat of deprivation of
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the
physical harm; financial resources and the right to the
victim, were held to be proper respondents in the case filed
use and enjoyment of the conjugal,
by the latter upon the allegation that they and their son (Go-
community or property owned in
B. "Sexual violence" refers to an act which is sexual in Tan's husband) had community of design and purpose in
common;
nature, committed against a woman or her child. It includes, tormenting her by giving her insufficient financial support;
but is not limited to: harassing and pressuring her to be ejected from the family
3. destroying household property; home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her 4. controlling the victims' own money or
child as a sex object, making demeaning properties or solely controlling the R.A. 9262 is not violative of the
and sexually suggestive remarks, conjugal money or properties. due process clause of the Constitution.
physically attacking the sexual parts of
the victim's body, forcing her/him to
It should be stressed that the acts enumerated in the Petitioner bewails the disregard of R.A. 9262, specifically in
watch obscene publications and
aforequoted provision are attributable to research that has the issuance of POs, of all protections afforded by the due
indecent shows or forcing the woman or
exposed the dimensions and dynamics of battery. The acts process clause of the Constitution. Says he: "On the basis of
her child to do indecent acts and/or
described here are also found in the U.N. Declaration on the unsubstantiated allegations, and practically no opportunity to
make films thereof, forcing the wife and
Elimination of Violence Against Women.90 Hence, the respond, the husband is stripped of family, property, guns,
mistress/lover to live in the conjugal
argument advanced by petitioner that the definition of what money, children, job, future employment and reputation, all
home or sleep together in the same
constitutes abuse removes the difference between violent in a matter of seconds, without an inkling of what
room with the abuser;
action and simple marital tiffs is tenuous. happened."95
We have held that "(t)he mere fact that an officer is required WHEREFORE, the instant petition for review on certiorari is
Ruling of the RTC
by law to inquire into the existence of certain facts and to hereby DENIED for lack of merit.
apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect In its April 25, 2008 Decision,5 the RTC declared the
SO ORDERED.
private rights do not constitute an exercise of judicial marriage void ab initio, the dispositive portion of which reads:
powers."115
G.R. No. 198780 October 16, 2013
WHEREFORE, premises considered, judgment is hereby
In the same manner as the public prosecutor ascertains rendered declaring the marriage of Liberty Albios and Daniel
through a preliminary inquiry or proceeding "whether there is REPUBLIC OF THE PHILIPPINES, Petitioner, Lee Fringer as void from the very beginning. As a necessary
reasonable ground to believe that an offense has been vs. consequence of this pronouncement, petitioner shall cease
committed and the accused is probably guilty thereof," the LIBERTY D. ALBIOS, Respondent. using the surname of respondent as she never acquired any
Punong Barangay must determine reasonable ground to right over it and so as to avoid a misimpression that she
believe that an imminent danger of violence against the remains the wife of respondent.
woman and her children exists or is about to recur that would DECISION
necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an xxxx
MENDOZA, J.:
executive, not a judicial, function. The same holds true with
the issuance of a BPO. SO ORDERED.6
This is a petition for review on certiorari under Rule 45 of the
Rules t of Court assailing the September 29, 2011
We need not even belabor the issue raised by petitioner that Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. The RTC was of the view that the parties married each other
since barangay officials and other law enforcement agencies 95414, which affirmed the April 25, 2008Decision2 of the for convenience only. Giving credence to the testimony of
are required to extend assistance to victims of violence and Regional Trial Court, Imus, Cavite (RTC). declaring the Albios, it stated that she contracted Fringer to enter into a
abuse, it would be very unlikely that they would remain marriage of Daniel Lee Fringer (Fringer) and respondent marriage to enable her to acquire American citizenship; that
objective and impartial, and that the chances of acquittal are Liberty Albios (A/bios) as void from the beginning. in consideration thereof, she agreed to pay him the sum of
$2,000.00; that after the ceremony, the parties went their The OSG also argues that the present case does not fall intention to establish a life together, to determining the
separate ways; that Fringer returned to the United States within the concept of a marriage in jest. The parties here intention of evading immigration laws.16 It must be noted,
and never again communicated with her; and that, in turn, intentionally consented to enter into a real and valid however, that this standard is used purely for immigration
she did not pay him the $2,000.00 because he never marriage, for if it were otherwise, the purpose of Albios to purposes and, therefore, does not purport to rule on the legal
processed her petition for citizenship. The RTC, thus, ruled acquire American citizenship would be rendered futile. validity or existence of a marriage.
that when marriage was entered into for a purpose other
than the establishment of a conjugal and family life, such
On October 29, 2012, Albios filed her Comment9 to the The question that then arises is whether a marriage declared
was a farce and should not be recognized from its inception.
petition, reiterating her stand that her marriage was similar to as a sham or fraudulent for the limited purpose of
a marriage by way of jest and, therefore, void from the immigration is also legally void and in existent. The early
Petitioner Republic of the Philippines, represented by the beginning. cases on limited purpose marriages in the United States
Office of the Solicitor General (OSG), filed a motion for made no definitive ruling. In 1946, the notable case of
reconsideration. The RTC issued the Order, 7 dated
On March 22, 2013, the OSG filed its Reply10 reiterating its
February 5, 2009, denying the motion for want of merit. It
arguments in its petition for review on certiorari. United States v. Rubenstein17 was promulgated, wherein in
explained that the marriage was declared void because the
order to allow an alien to stay in the country, the parties had
parties failed to freely give their consent to the marriage as
agreed to marry but not to live together and to obtain a
they had no intention to be legally bound by it and used it Ruling of the Court
divorce within six months. The Court, through Judge Learned
only as a means to acquire American citizenship in
Hand, ruled that a marriage to convert temporary into
consideration of $2,000.00.
The resolution of this case hinges on this sole question of permanent permission to stay in the country was not a
law: Is a marriage, contracted for the sole purpose of marriage, there being no consent, to wit:
Not in conformity, the OSG filed an appeal before the CA. acquiring American citizenship in consideration of $2,000.00,
void ab initio on the ground of lack of consent?
x x x But, that aside, Spitz and Sandler were never married
Ruling of the CA at all. Mutual consent is necessary to every contract; and no
The Court resolves in the negative. matter what forms or ceremonies the parties may go through
indicating the contrary, they do not contract if they do not in
In its assailed decision, dated September 29, 2011, the CA
fact assent, which may always be proved. x x x Marriage is
affirmed the RTC ruling which found that the essential Before the Court delves into its ruling, It shall first examine
no exception to this rule: a marriage in jest is not a marriage
requisite of consent was lacking. The CA stated that the the phenomenon of marriage fraud for the purposes of at all. x x x It is quite true that a marriage without subsequent
parties clearly did not understand the nature and immigration. consummation will be valid; but if the spouses agree to a
consequence of getting married and that their case was
marriage only for the sake of representing it as such to the
similar to a marriage in jest. It further explained that the
Marriage Fraud in Immigration outside world and with the understanding that they will put an
parties never intended to enter into the marriage contract
end to it as soon as it has served its purpose to deceive,
and never intended to live as husband and wife or build a
they have never really agreed to be married at all. They must
family. It concluded that their purpose was primarily for The institution of marriage carries with it concomitant assent to enter into the relation as it is ordinarily understood,
personal gain, that is, for Albios to obtain foreign citizenship, benefits. This has led to the development of marriage fraud and it is not ordinarily understood as merely a pretence, or
and for Fringer, the consideration of $2,000.00. for the sole purpose of availing of particular benefits. In the cover, to deceive others.18
United States, marriages where a couple marries only to
Hence, this petition. achieve a particular purpose or acquire specific benefits,
have been referred to as "limited purpose" marriages. 11 A (Italics supplied)
common limited purpose marriage is one entered into solely
Assignment of Error for the legitimization of a child.12 Another, which is the On the other end of the spectrum is the 1969 case of Mpiliris
subject of the present case, is for immigration purposes.
v. Hellenic Lines,19 which declared as valid a marriage
Immigration law is usually concerned with the intention of the entered into solely for the husband to gain entry to the
THE COURT OF APPEALS ERRED ON A QUESTION OF
couple at the time of their marriage,13 and it attempts to filter United States, stating that a valid marriage could not be
LAWWHEN IT HELD THAT A MARRIAGE CONTRACTED
out those who use marriage solely to achieve immigration
FOR THEPURPOSE OF OBTAINING FOREIGN avoided "merely because the marriage was entered into for a
status.14 limited purpose."20 The 1980 immigration case of Matter of
CITIZENSHIP WAS DONEIN JEST, HENCE, LACKING IN
THE ESSENTIAL ELEMENT OFCONSENT.8 McKee,21 further recognized that a fraudulent or sham
In 1975, the seminal case of Bark v. Immigration and marriage was intrinsically different from a non subsisting
Naturalization Service,15 established the principal test for one.
The OSG argues that albeit the intention was for Albios to
determining the presence of marriage fraud in immigration
acquire American citizenship and for Fringer to be paid
cases. It ruled that a "marriage is a sham if the bride and
$2,000.00, both parties freely gave their consent to the Nullifying these limited purpose marriages for lack of consent
groom did not intend to establish a life together at the time has, therefore, been recognized as problematic. The
marriage, as they knowingly and willingly entered into that
they were married. "This standard was modified with the problem being that in order to obtain an immigration benefit,
marriage and knew the benefits and consequences of being
passage of the Immigration Marriage Fraud Amendment of
bound by it. According to the OSG, consent should be a legal marriage is first necessary.22 At present, United
1986 (IMFA), which now requires the couple to instead States courts have generally denied annulments involving"
distinguished from motive, the latter being inconsequential to
demonstrate that the marriage was not "entered into for the limited purpose" marriages where a couple married only to
the validity of marriage.
purpose of evading the immigration laws of the United
States." The focus, thus, shifted from determining the
achieve a particular purpose, and have upheld such acquiring American citizenship through marriage. Such a couple chooses to lead. Any attempt to regulate their
marriages as valid.23 plainly demonstrates that they willingly and deliberately lifestyle would go into the realm of their right to privacy and
contracted the marriage. There was a clear intention to enter would raise serious constitutional questions.29 The right to
into a real and valid marriage so as to fully comply with the marital privacy allows married couples to structure their
The Court now turns to the case at hand.
requirements of an application for citizenship. There was a marriages in almost any way they see fit, to live together or
full and complete understanding of the legal tie that would be live apart, to have children or no children, to love one
Respondent’s marriage not void created between them, since it was that precise legal tie another or not, and so on.30 Thus, marriages entered into for
which was necessary to accomplish their goal. other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they
In declaring the respondent’s marriage void, the RTC ruled comply with all the legal requisites,31are equally valid. Love,
that when a marriage was entered into for a purpose other In ruling that Albios’ marriage was void for lack of consent,
though the ideal consideration in a marriage contract, is not
than the establishment of a conjugal and family life, such the CA characterized such as akin to a marriage by way of
the only valid cause for marriage. Other considerations, not
was a farce and should not be recognized from its inception. jest. A marriage in jest is a pretended marriage, legal in form
precluded by law, may validly support a marriage.
In its resolution denying the OSG’s motion for but entered into as a joke, with no real intention of entering
reconsideration, the RTC went on to explain that the into the actual marriage status, and with a clear
marriage was declared void because the parties failed to understanding that the parties would not be bound. The Although the Court views with disdain the respondent’s
freely give their consent to the marriage as they had no ceremony is not followed by any conduct indicating a attempt to utilize marriage for dishonest purposes, It cannot
intention to be legally bound by it and used it only as a purpose to enter into such a relation.27 It is a pretended declare the marriage void. Hence, though the respondent’s
means for the respondent to acquire American citizenship. marriage not intended to be real and with no intention to marriage may be considered a sham or fraudulent for the
Agreeing with the RTC, the CA ruled that the essential create any legal ties whatsoever, hence, the absence of any purposes of immigration, it is not void ab initio and continues
requisite of consent was lacking. It held that the parties genuine consent. Marriages in jest are void ab initio, not for to be valid and subsisting.
clearly did not understand the nature and consequence of vitiated, defective, or unintelligent consent, but for a
getting married. As in the Rubenstein case, the CA found the complete absence of consent. There is no genuine consent
Neither can their marriage be considered voidable on the
marriage to be similar to a marriage in jest considering that because the parties have absolutely no intention of being
ground of fraud under Article 45 (3) of the Family Code. Only
the parties only entered into the marriage for the acquisition bound in any way or for any purpose.
the circumstances listed under Article 46 of the same Code
of American citizenship in exchange of $2,000.00. They
may constitute fraud, namely, (1) non- disclosure of a
never intended to enter into a marriage contract and never
The respondent’s marriage is not at all analogous to a previous conv1ctwn involving moral turpitude; (2)
intended to live as husband and wife or build a family.
marriage in jest.1âwphi1 Albios and Fringer had an concealment by the wife of a pregnancy by another man; (3)
undeniable intention to be bound in order to create the very concealment of a sexually transmitted disease; and (4)
The CA’s assailed decision was, therefore, grounded on the bond necessary to allow the respondent to acquire American concealment of drug addiction, alcoholism, or homosexuality.
parties’ supposed lack of consent. Under Article 2 of the citizenship. Only a genuine consent to be married would No other misrepresentation or deceit shall constitute fraud as
Family Code, consent is an essential requisite of marriage. allow them to further their objective, considering that only a a ground for an action to annul a marriage. Entering into a
Article 4 of the same Code provides that the absence of any valid marriage can properly support an application for marriage for the sole purpose of evading immigration laws
essential requisite shall render a marriage void ab initio. citizenship. There was, thus, an apparent intention to enter does not qualify under any of the listed circumstances.
into the actual marriage status and to create a legal tie, albeit Furthermore, under Article 47 (3), the ground of fraud may
for a limited purpose. Genuine consent was, therefore, only be brought by the injured or innocent party. In the
Under said Article 2, for consent to be valid, it must be (1) clearly present. present case, there is no injured party because Albios and
freely given and (2) made in the presence of a solemnizing
Fringer both conspired to enter into the sham marriage.
officer. A "freely given" consent requires that the contracting
parties willingly and deliberately enter into the marriage. The avowed purpose of marriage under Article 1 of the
Consent must be real in the sense that it is not vitiated nor Family Code is for the couple to establish a conjugal and Albios has indeed made a mockery of the sacred institution
rendered defective by any of the vices of consent under family life. The possibility that the parties in a marriage might of marriage. Allowing her marriage with Fringer to be
Articles45 and 46 of the Family Code, such as fraud, force, have no real intention to establish a life together is, however, declared void would only further trivialize this inviolable
intimidation, and undue influence.24Consent must also be insufficient to nullify a marriage freely entered into in institution. The Court cannot declare such a marriage void in
conscious or intelligent, in that the parties must be capable accordance with law. The same Article 1 provides that the the event the parties fail to qualify for immigration benefits,
of intelligently understanding the nature of, and both the nature, consequences, and incidents of marriage are after they have availed of its benefits, or simply have no
beneficial or unfavorable consequences of their act.25 Their governed by law and not subject to stipulation. A marriage further use for it. These unscrupulous individuals cannot be
understanding should not be affected by insanity, may, thus, only be declared void or voidable under the allowed to use the courts as instruments in their fraudulent
intoxication, drugs, or hypnotism.26 grounds provided by law. There is no law that declares a schemes. Albios already misused a judicial institution to
marriage void if it is entered into for purposes other than enter into a marriage of convenience; she should not be
what the Constitution or law declares, such as the acquisition allowed to again abuse it to get herself out of an
Based on the above, consent was not lacking between of foreign citizenship. Therefore, so long as all the essential inconvenient situation.
Albios and Fringer. In fact, there was real consent because it and formal requisites prescribed by law are present, and it is
was not vitiated nor rendered defective by any vice of
not void or voidable under the grounds provided by law, it
consent. Their consent was also conscious and intelligent as No less than our Constitution declares that marriage, as an
shall be declared valid.28
they understood the nature and the beneficial and in violable social institution, is the foundation of the family
inconvenient consequences of their marriage, as nothing and shall be protected by the State.32 It must, therefore, be
impaired their ability to do so. That their consent was freely Motives for entering into a marriage are varied and complex. safeguarded from the whims and caprices of the contracting
given is best evidenced by their conscious purpose of The State does not and cannot dictate on the kind of life that parties. This Court cannot leave the impression that
marriage may easily be entered into when it suits the needs DECISION form of "Congressional Pork Barrel" in
of the parties, and just as easily nullified when no longer the Philippines since the utilization of the
needed. funds appropriated therein were
PERLAS-BERNABE, J.:
subjected to post-enactment legislator
approval. Particularly, in the area of fund
WHEREFORE, the petition is GRANTED. The September
"Experience is the oracle of truth."1 release, Section 312 provides that the
29, 2011 Decision of the Court of Appeals in CA-G.R. CV
sums appropriated for certain public
No. 95414 is ANNULLED, and Civil Case No. 1134-06 is
works projects13 "shall be distributed x x
DISMISSED for utter lack of merit. -James Madison x subject to the approval of a joint
committee elected by the Senate and
SO ORDERED. Before the Court are consolidated petitions2 taken under the House of Representatives. "The
Rule 65 of the Rules of Court, all of which assail the committee from each House may also
constitutionality of the Pork Barrel System. Due to the authorize one of its members to approve
G.R. No. 208566 November 19, 2013
complexity of the subject matter, the Court shall heretofore the distribution made by the Secretary of
discuss the system‘s conceptual underpinnings before Commerce and
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. detailing the particulars of the constitutional challenge. Communications."14 Also, in the area of
VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. fund realignment, the same section
ABANTE and QUINTIN PAREDES SAN provides that the said secretary, "with
The Facts the approval of said joint committee, or
DIEGO, Petitioners,
vs. of the authorized members thereof, may,
HONORABLE EXECUTIVE SECRETARY PAQUITO N. I. Pork Barrel: General Concept. for the purposes of said distribution,
OCHOA JR. SECRETARY OF BUDGET AND transfer unexpended portions of any
MANAGEMENT FLORENCIO B. ABAD, NATIONAL item of appropriation under this Act to
TREASURER ROSALIA V. DE LEON SENATE OF THE "Pork Barrel" is political parlance of American - any other item hereunder."
PHILIPPINES represented by FRANKLIN M. DRILON m English origin.3 Historically, its usage may be
his capacity as SENATE PRESIDENT and HOUSE OF traced to the degrading ritual of rolling out a barrel
stuffed with pork to a multitude of black slaves who In 1950, it has been documented15 that
REPRESENTATIVES represented by FELICIANO S.
would cast their famished bodies into the porcine post-enactment legislator participation
BELMONTE, JR. in his capacity as SPEAKER OF THE
feast to assuage their hunger with morsels coming broadened from the areas of fund
HOUSE, Respondents.
from the generosity of their well-fed master.4 This release and realignment to the area of
practice was later compared to the actions of project identification. During that year,
x-----------------------x American legislators in trying to direct federal the mechanics of the public works act
budgets in favor of their districts.5 While the advent was modified to the extent that the
of refrigeration has made the actual pork barrel discretion of choosing projects was
G.R. No. 208493 transferred from the Secretary of
obsolete, it persists in reference to political bills
that "bring home the bacon" to a legislator‘s district Commerce and Communications to
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON and constituents.6 In a more technical sense, "Pork legislators. "For the first time, the law
S. ALCANTARA, Petitioner, Barrel" refers to an appropriation of government carried a list of projects selected by
vs. spending meant for localized projects and secured Members of Congress, they ‘being the
HONORABLE FRANKLIN M. DRILON in his capacity as solely or primarily to bring money to a representatives of the people, either on
SENATE PRESIDENT and HONORABLE FELICIANO S. representative's district.7Some scholars on the their own account or by consultation with
BELMONTE, JR., in his capacity as SPEAKER OF THE subject further use it to refer to legislative control local officials or civil leaders.‘"16 During
HOUSE OF REPRESENTATIVES, Respondents. of local appropriations.8 this period, the pork barrel process
commenced with local government
councils, civil groups, and individuals
x-----------------------x In the Philippines, "Pork Barrel" has been appealing to Congressmen or Senators
commonly referred to as lump-sum, discretionary for projects. Petitions that were
funds of Members of the Legislature,9 although, as accommodated formed part of a
G.R. No. 209251
will be later discussed, its usage would evolve in legislator‘s allocation, and the amount
reference to certain funds of the Executive. each legislator would eventually get is
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, determined in a caucus convened by the
Marinduque Former Provincial Board Member -Province majority. The amount was then
II. History of Congressional Pork Barrel in the Philippines.
of Marinduque, Petitioner, integrated into the administration bill
vs. prepared by the Department of Public
PRESIDENT BENIGNO SIMEON C. AQUINO III* and A. Pre-Martial Law Era (1922-1972). Works and Communications. Thereafter,
SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT the Senate and the House of
OF BUDGET AND MANAGEMENT, Respondents. Representatives added their own
Act 3044,10 or the Public Works Act of
1922, is considered11 as the earliest provisions to the bill until it was signed
into law by the President – the Public
Works Act.17 In the 1960‘s, however, Million, respectively, for the funding of directed to submit reports to the Senate
pork barrel legislation reportedly ceased development projects in the Mindanao Committee on Finance and the House
in view of the stalemate between the and Visayas areas in 1989. It has been Committee on Appropriations on the
House of Representatives and the documented23 that the clamor raised by releases made from the funds.33
Senate.18 the Senators and the Luzon legislators
for a similar funding, prompted the
Under the 199734 CDF Article, Members
creation of the "Countrywide
B. Martial Law Era (1972-1986). of Congress and the Vice-President, in
Development Fund" (CDF) which was
consultation with the implementing
integrated into the 1990 GAA24 with an
agency concerned, were directed to
While the previous" Congressional Pork initial funding of ₱2.3 Billion to cover
submit to the DBM the list of 50% of
Barrel" was apparently discontinued in "small local infrastructure and other
projects to be funded from their
1972 after Martial Law was declared, an priority community projects."
respective CDF allocations which shall
era when "one man controlled the
be duly endorsed by (a) the Senate
legislature,"19 the reprieve was only
Under the GAAs for the years 1991 and President and the Chairman of the
temporary. By 1982, the Batasang
1992,25 CDF funds were, with the Committee on Finance, in the case of
Pambansa had already introduced a
approval of the President, to be released the Senate, and (b) the Speaker of the
new item in the General Appropriations
directly to the implementing agencies House of Representatives and the
Act (GAA) called the" Support for Local
but "subject to the submission of the Chairman of the Committee on
Development Projects" (SLDP) under
required list of projects and Appropriations, in the case of the House
the article on "National Aid to Local
activities."Although the GAAs from 1990 of Representatives; while the list for the
Government Units". Based on
to 1992 were silent as to the amounts of remaining 50% was to be submitted
reports,20 it was under the SLDP that the
allocations of the individual legislators, within six (6) months thereafter. The
practice of giving lump-sum allocations
as well as their participation in the same article also stated that the project
to individual legislators began, with each
identification of projects, it has been list, which would be published by the
assemblyman receiving ₱500,000.00.
reported26 that by 1992, Representatives DBM,35 "shall be the basis for the
Thereafter, assemblymen would
were receiving ₱12.5 Million each in release of funds" and that "no funds
communicate their project preferences
CDF funds, while Senators were appropriated herein shall be disbursed
to the Ministry of Budget and
receiving ₱18 Million each, without any for projects not included in the list herein
Management for approval. Then, the
limitation or qualification, and that they required."
said ministry would release the
could identify any kind of project, from
allocation papers to the Ministry of Local
hard or infrastructure projects such as
Governments, which would, in turn, The following year, or in 1998,36 the
roads, bridges, and buildings to "soft
issue the checks to the city or municipal foregoing provisions regarding the
projects" such as textbooks, medicines,
treasurers in the assemblyman‘s locality. required lists and endorsements were
and scholarships.27
It has been further reported that reproduced, except that the publication
"Congressional Pork Barrel" projects of the project list was no longer required
under the SLDP also began to cover not D. Fidel Valdez Ramos (Ramos) Administration (1992-1998). as the list itself sufficed for the release
only public works projects, or so- called of CDF Funds.
"hard projects", but also "soft
The following year, or in 1993,28 the
projects",21 or non-public works projects
GAA explicitly stated that the release of The CDF was not, however, the lone
such as those which would fall under the
CDF funds was to be made upon the form of "Congressional Pork Barrel" at
categories of, among others, education,
submission of the list of projects and that time. Other forms of "Congressional
health and livelihood.22
activities identified by, among others, Pork Barrel" were reportedly fashioned
individual legislators. For the first time, and inserted into the GAA (called
C. Post-Martial Law Era: the 1993 CDF Article included an "Congressional Insertions" or "CIs") in
allocation for the Vice-President.29 As order to perpetuate the ad ministration‘s
such, Representatives were allocated political agenda.37 It has been articulated
Corazon Cojuangco Aquino
₱12.5 Million each in CDF funds, that since CIs "formed part and parcel of
Administration (1986-1992).
Senators, ₱18 Million each, and the the budgets of executive departments,
Vice-President, ₱20 Million. they were not easily identifiable and
After the EDSA People Power were thus harder to monitor."
Revolution in 1986 and the restoration of Nonetheless, the lawmakers themselves
In 1994,30 1995,31 and 1996,32 the GAAs
Philippine democracy, "Congressional as well as the finance and budget
contained the same provisions on
Pork Barrel" was revived in the form of officials of the implementing agencies,
project identification and fund release as
the "Mindanao Development Fund" and as well as the DBM, purportedly knew
found in the 1993 CDF Article. In
the "Visayas Development Fund" which about the insertions.38 Examples of
addition, however, the Department of
were created with lump-sum these CIs are the Department of
Budget and Management (DBM) was
appropriations of ₱480 Million and ₱240 Education (DepEd) School Building
Fund, the Congressional Initiative 2003,50 the same single provision was "the amount of at least ₱250 Million of
Allocations, the Public Works Fund, the present, with simply an expansion of the ₱500 Million allotted for the
El Niño Fund, and the Poverty purpose and express authority to construction and completion of school
Alleviation Fund.39 The allocations for realign. Nevertheless, the provisions in buildings shall be made available to
the School Building Fund, particularly, the 2003 budgets of the Department of NGOs including the Federation of
―shall be made upon prior consultation Public Works and Highways51 (DPWH) Filipino-Chinese Chambers of
with the representative of the legislative and the DepEd52 required prior Commerce and Industry, Inc. for its
district concerned.”40 Similarly, the consultation with Members of Congress "Operation Barrio School" program, with
legislators had the power to direct how, on the aspects of implementation capability and proven track records in
where and when these appropriations delegation and project list submission, the construction of public school
were to be spent.41 respectively. In 2004, the 2003 GAA buildings x x x."62 The same allocation
was re-enacted.53 was made available to NGOs in the
2007 and 2009 GAAs under the DepEd
E. Joseph Ejercito Estrada (Estrada) Administration (1998-
Budget.63 Also, it was in 2007 that the
2001). In 2005,54 the PDAF Article provided that
Government Procurement Policy
the PDAF shall be used "to fund priority
Board64 (GPPB) issued Resolution No.
programs and projects under the ten
In 1999,42 the CDF was removed in the 12-2007 dated June 29, 2007 (GPPB
point agenda of the national government
GAA and replaced by three (3) separate Resolution 12-2007), amending the
and shall be released directly to the
forms of CIs, namely, the "Food Security implementing rules and regulations65 of
implementing agencies." It also
Program Fund,"43 the "Lingap Para Sa RA 9184,66 the Government
introduced the program menu
Mahihirap Program Fund,"44and the Procurement Reform Act, to include, as
concept,55 which is essentially a list of
"Rural/Urban Development a form of negotiated procurement,67 the
general programs and implementing
Infrastructure Program Fund,"45 all of procedure whereby the Procuring
agencies from which a particular PDAF
which contained a special provision Entity68(the implementing agency) may
project may be subsequently chosen by
requiring "prior consultation" with the enter into a memorandum of agreement
the identifying authority. The 2005 GAA
Member s of Congress for the release of with an NGO, provided that "an
was re-enacted56 in 2006 and hence,
the funds. appropriation law or ordinance earmarks
operated on the same bases. In similar
an amount to be specifically contracted
regard, the program menu concept was
out to NGOs."69
It was in the year 200046 that the consistently integrated into the
"Priority Development Assistance Fund" 2007,57 2008,58 2009,59 and
(PDAF) appeared in the GAA. The 201060 GAAs. G. Present Administration (2010-Present).
requirement of "prior consultation with
the respective Representative of the
Textually, the PDAF Articles from 2002 Differing from previous PDAF Articles
District" before PDAF funds were
to 2010 were silent with respect to the but similar to the CDF Articles, the
directly released to the implementing
specific amounts allocated for the 201170 PDAF Article included an
agency concerned was explicitly stated
individual legislators, as well as their express statement on lump-sum
in the 2000 PDAF Article. Moreover,
participation in the proposal and amounts allocated for individual
realignment of funds to any expense
identification of PDAF projects to be legislators and the Vice-President:
category was expressly allowed, with
funded. In contrast to the PDAF Articles, Representatives were given ₱70 Million
the sole condition that no amount shall
however, the provisions under the each, broken down into ₱40 Million for
be used to fund personal services and
DepEd School Building Program and the "hard projects" and ₱30 Million for "soft
other personnel benefits.47 The
DPWH budget, similar to its projects"; while ₱200 Million was given
succeeding PDAF provisions remained
predecessors, explicitly required prior to each Senator as well as the Vice-
the same in view of the re-
consultation with the concerned Member President, with a ₱100 Million allocation
enactment48 of the 2000 GAA for the
of Congress61anent certain aspects of each for "hard" and "soft projects."
year 2001.
project implementation. Likewise, a provision on realignment of
funds was included, but with the
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001- qualification that it may be allowed only
Significantly, it was during this era that
2010). once. The same provision also allowed
provisions which allowed formal
the Secretaries of Education, Health,
participation of non-governmental
Social Welfare and Development,
The 200249 PDAF Article was brief and organizations (NGO) in the
Interior and Local Government,
straightforward as it merely contained a implementation of government projects
Environment and Natural Resources,
single special provision ordering the were introduced. In the Supplemental
Energy, and Public Works and
release of the funds directly to the Budget for 2006, with respect to the
Highways to realign PDAF Funds, with
implementing agency or local appropriation for school buildings, NGOs
the further conditions that: (a)
government unit concerned, without were, by law, encouraged to participate.
realignment is within the same
further qualifications. The following year, For such purpose, the law stated that
implementing unit and same project Malampaya Funds and the Presidential Social Candazo identified were public funds intended for
category as the original project, for Fund. medicines and textbooks. A few days later, the tale
infrastructure projects; (b) allotment of the money trail became the banner story of the
released has not yet been obligated for Philippine Daily Inquirer issue of August 13, 1996,
On the one hand, the Malampaya Funds was
the original scope of work, and (c) the accompanied by an illustration of a roasted
created as a special fund under Section 880 of
request for realignment is with the pig."93 "The publication of the stories, including
Presidential Decree No. (PD) 910,81 issued by then
concurrence of the legislator those about congressional initiative allocations of
President Ferdinand E. Marcos (Marcos) on March
concerned.71 certain lawmakers, including ₱3.6 Billion for a
22, 1976. In enacting the said law, Marcos
Congressman, sparked public outrage."94
recognized the need to set up a special fund to
In the 201272 and 201373 PDAF Articles, help intensify, strengthen, and consolidate
it is stated that the "identification of government efforts relating to the exploration, Thereafter, or in 2004, several concerned citizens
projects and/or designation of exploitation, and development of indigenous sought the nullification of the PDAF as enacted in
beneficiaries shall conform to the priority energy resources vital to economic growth.82 Due the 2004 GAA for being unconstitutional.
list, standard or design prepared by to the energy-related activities of the government Unfortunately, for lack of "any pertinent evidentiary
each implementing agency (priority list in the Malampaya natural gas field in Palawan, or support that illegal misuse of PDAF in the form of
requirement) x x x." However, as the "Malampaya Deep Water Gas-to-Power kickbacks has become a common exercise of
practiced, it would still be the individual Project",83 the special fund created under PD 910 unscrupulous Members of Congress," the petition
legislator who would choose and identify has been currently labeled as Malampaya Funds. was dismissed.95
the project from the said priority list.74
On the other hand the Presidential Social Fund Recently, or in July of the present year, the
Provisions on legislator allocations75 as was created under Section 12, Title IV84 of PD National Bureau of Investigation (NBI) began its
well as fund realignment76 were included 1869,85 or the Charter of the Philippine probe into allegations that "the government has
in the 2012 and 2013 PDAF Articles; but Amusement and Gaming Corporation (PAGCOR). been defrauded of some ₱10 Billion over the past
the allocation for the Vice-President, PD 1869 was similarly issued by Marcos on July 10 years by a syndicate using funds from the pork
which was pegged at ₱200 Million in the 11, 1983. More than two (2) years after, he barrel of lawmakers and various government
2011 GAA, had been deleted. In amended PD 1869 and accordingly issued PD agencies for scores of ghost projects."96 The
addition, the 2013 PDAF Article now 1993 on October 31, 1985,86 amending Section investigation was spawned by sworn affidavits of
allowed LGUs to be identified as 1287 of the former law. As it stands, the six (6) whistle-blowers who declared that JLN
implementing agencies if they have the Presidential Social Fund has been described as a Corporation – "JLN" standing for Janet Lim
technical capability to implement the special funding facility managed and administered Napoles (Napoles) – had swindled billions of
projects.77 Legislators were also allowed by the Presidential Management Staff through pesos from the public coffers for "ghost projects"
to identify programs/projects, except for which the President provides direct assistance to using no fewer than 20 dummy NGOs for an entire
assistance to indigent patients and priority programs and projects not funded under decade. While the NGOs were supposedly the
scholarships, outside of his legislative the regular budget. It is sourced from the share of ultimate recipients of PDAF funds, the whistle-
district provided that he secures the the government in the aggregate gross earnings of blowers declared that the money was diverted into
written concurrence of the legislator of PAGCOR.88 Napoles‘ private accounts.97 Thus, after its
the intended outside-district, endorsed investigation on the Napoles controversy, criminal
by the Speaker of the House.78 Finally, complaints were filed before the Office of the
IV. Controversies in the Philippines.
any realignment of PDAF funds, Ombudsman, charging five (5) lawmakers for
modification and revision of project Plunder, and three (3) other lawmakers for
identification, as well as requests for Over the decades, "pork" funds in the Philippines Malversation, Direct Bribery, and Violation of the
release of funds, were all required to be have increased tremendously,89 owing in no small Anti-Graft and Corrupt Practices Act. Also
favorably endorsed by the House part to previous Presidents who reportedly used recommended to be charged in the complaints are
Committee on Appropriations and the the "Pork Barrel" in order to gain congressional some of the lawmakers‘ chiefs -of-staff or
Senate Committee on Finance, as the support.90 It was in 1996 when the first controversy representatives, the heads and other officials of
case may be.79 surrounding the "Pork Barrel" erupted. Former three (3) implementing agencies, and the several
Marikina City Representative Romeo Candazo presidents of the NGOs set up by Napoles.98
(Candazo), then an anonymous source, "blew the
III. History of Presidential Pork Barrel in the Philippines.
lid on the huge sums of government money that
On August 16, 2013, the Commission on Audit
regularly went into the pockets of legislators in the
(CoA) released the results of a three-year audit
While the term "Pork Barrel" has been typically form of kickbacks."91 He said that "the kickbacks
investigation99covering the use of legislators'
associated with lump-sum, discretionary funds of were ‘SOP‘ (standard operating procedure) among
PDAF from 2007 to 2009, or during the last three
Members of Congress, the present cases and the legislators and ranged from a low 19 percent to a
(3) years of the Arroyo administration. The
recent controversies on the matter have, however, high 52 percent of the cost of each project, which
purpose of the audit was to determine the
shown that the term‘s usage has expanded to could be anything from dredging, rip rapping,
propriety of releases of funds under PDAF and the
include certain funds of the President such as the sphalting, concreting, and construction of school
Various Infrastructures including Local Projects
buildings."92 "Other sources of kickbacks that
(VILP)100 by the DBM, the application of these
funds and the implementation of projects by the ● Selection of the NGOs were not Paredes San Diego (Belgica, et al.), and Jose M. Villegas,
appropriate implementing agencies and several compliant with law and regulations. Jr. (Villegas) filed an Urgent Petition For Certiorari and
government-owned-and-controlled corporations Prohibition With Prayer For The Immediate Issuance of
(GOCCs).101 The total releases covered by the Temporary Restraining Order (TRO) and/or Writ of
● Eighty-Two (82) NGOs entrusted with
audit amounted to ₱8.374 Billion in PDAF and Preliminary Injunction dated August 27, 2013 under Rule 65
implementation of seven hundred
₱32.664 Billion in VILP, representing 58% and of the Rules of Court (Belgica Petition), seeking that the
seventy two (772) projects amount to
32%, respectively, of the total PDAF and VILP annual "Pork Barrel System," presently embodied in the
₱6.156 Billion were either found
releases that were found to have been made provisions of the GAA of 2013 which provided for the 2013
questionable, or submitted
nationwide during the audit period.102 Accordingly, PDAF, and the Executive‘s lump-sum, discretionary funds,
questionable/spurious documents, or
the Co A‘s findings contained in its Report No. such as the Malampaya Funds and the Presidential Social
failed to liquidate in whole or in part their
2012-03 (CoA Report), entitled "Priority Fund,107 be declared unconstitutional and null and void for
utilization of the Funds.
Development Assistance Fund (PDAF) and being acts constituting grave abuse of discretion. Also, they
Various Infrastructures including Local Projects pray that the Court issue a TRO against respondents
(VILP)," were made public, the highlights of which ● Procurement by the NGOs, as well as Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad)
are as follows:103 some implementing agencies, of goods and Rosalia V. De Leon, in their respective capacities as the
and services reportedly used in the incumbent Executive Secretary, Secretary of the Department
projects were not compliant with law. of Budget and Management (DBM), and National Treasurer,
● Amounts released for projects
or their agents, for them to immediately cease any
identified by a considerable number of
expenditure under the aforesaid funds. Further, they pray
legislators significantly exceeded their As for the "Presidential Pork Barrel", whistle-
that the Court order the foregoing respondents to release to
respective allocations. blowers alleged that" at least ₱900 Million from the CoA and to the public: (a) "the complete schedule/list of
royalties in the operation of the Malampaya gas legislators who have availed of their PDAF and VILP from
project off Palawan province intended for agrarian
● Amounts were released for projects the years 2003 to 2013, specifying the use of the funds, the
reform beneficiaries has gone into a dummy project or activity and the recipient entities or individuals, and
outside of legislative districts of
NGO."104 According to incumbent CoA all pertinent data thereto"; and (b) "the use of the Executive‘s
sponsoring members of the Lower
Chairperson Maria Gracia Pulido Tan (CoA
House. lump-sum, discretionary funds, including the proceeds from
Chairperson), the CoA is, as of this writing, in the the x x x Malampaya Funds and remittances from the
process of preparing "one consolidated report" on PAGCOR x x x from 2003 to 2013, specifying the x x x
● Total VILP releases for the period the Malampaya Funds.105 project or activity and the recipient entities or individuals, and
exceeded the total amount appropriated all pertinent data thereto."108 Also, they pray for the "inclusion
under the 2007 to 2009 GAAs. in budgetary deliberations with the Congress of all presently
V. The Procedural Antecedents.
off-budget, lump-sum, discretionary funds including, but not
● Infrastructure projects were limited to, proceeds from the Malampaya Funds and
Spurred in large part by the findings contained in remittances from the PAGCOR."109 The Belgica Petition was
constructed on private lots without these
the CoA Report and the Napoles controversy, docketed as G.R. No. 208566.110
having been turned over to the
several petitions were lodged before the Court
government.
similarly seeking that the "Pork Barrel System" be
declared unconstitutional. To recount, the relevant Lastly, on September 5, 2013, petitioner Pedrito M.
● Significant amounts were released to procedural antecedents in these cases are as Nepomuceno (Nepomuceno), filed a Petition dated August
implementing agencies without the follows: 23, 2012 (Nepomuceno Petition), seeking that the PDAF be
latter‘s endorsement and without declared unconstitutional, and a cease and desist order be
considering their mandated functions, issued restraining President Benigno Simeon S. Aquino III
On August 28, 2013, petitioner Samson S. Alcantara (President Aquino) and Secretary Abad from releasing such
administrative and technical capabilities
(Alcantara), President of the Social Justice Society, filed a funds to Members of Congress and, instead, allow their
to implement projects.
Petition for Prohibition of even date under Rule 65 of the release to fund priority projects identified and approved by
Rules of Court (Alcantara Petition), seeking that the "Pork the Local Development Councils in consultation with the
● Implementation of most livelihood Barrel System" be declared unconstitutional, and a writ of executive departments, such as the DPWH, the Department
projects was not undertaken by the prohibition be issued permanently restraining respondents of Tourism, the Department of Health, the Department of
implementing agencies themselves but Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their Transportation, and Communication and the National
by NGOs endorsed by the proponent respective capacities as the incumbent Senate President Economic Development Authority.111 The Nepomuceno
legislators to which the Funds were and Speaker of the House of Representatives, from further Petition was docketed as UDK-14951.112
transferred. taking any steps to enact legislation appropriating funds for
the "Pork Barrel System," in whatever form and by whatever
name it may be called, and from approving further releases On September 10, 2013, the Court issued a Resolution of
● The funds were transferred to the
pursuant thereto.106 The Alcantara Petition was docketed as even date (a) consolidating all cases; (b) requiring public
NGOs in spite of the absence of any respondents to comment on the consolidated petitions; (c)
G.R. No. 208493.
appropriation law or ordinance. issuing a TRO (September 10, 2013 TRO) enjoining the
DBM, National Treasurer, the Executive Secretary, or any of
On September 3, 2013, petitioners Greco Antonious Beda B. the persons acting under their authority from releasing (1)
Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin
the remaining PDAF allocated to Members of Congress Whether or not (a) the issues raised in the consolidated question the validity of the subject act or issuance; (c) the
under the GAA of 2013, and (2) Malampaya Funds under the petitions involve an actual and justiciable controversy; (b) the question of constitutionality must be raised at the earliest
phrase "for such other purposes as may be hereafter issues raised in the consolidated petitions are matters of opportunity ; and (d) the issue of constitutionality must be the
directed by the President" pursuant to Section 8 of PD 910 policy not subject to judicial review; (c) petitioners have legal very lis mota of the case.118 Of these requisites, case law
but not for the purpose of "financing energy resource standing to sue; and (d) the Court‘s Decision dated August states that the first two are the most important119and,
development and exploitation programs and projects of the 19, 1994 in G.R. Nos. 113105, 113174, 113766, and therefore, shall be discussed forthwith.
government‖ under the same provision; and (d) setting the 113888, entitled "Philippine Constitution Association v.
consolidated cases for Oral Arguments on October 8, 2013. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in
A. Existence of an Actual Case or Controversy.
G.R. No. 164987, entitled "Lawyers Against Monopoly and
Poverty v. Secretary of Budget and Management"115 (LAMP)
On September 23, 2013, the Office of the Solicitor General
bar the re-litigatio n of the issue of constitutionality of the By constitutional fiat, judicial power operates only when there
(OSG) filed a Consolidated Comment (Comment) of even
"Pork Barrel System" under the principles of res judicata and is an actual case or controversy.120 This is embodied in
date before the Court, seeking the lifting, or in the
stare decisis. Section 1, Article VIII of the 1987 Constitution which
alternative, the partial lifting with respect to educational and
pertinently states that "judicial power includes the duty of the
medical assistance purposes, of the Court‘s September 10,
courts of justice to settle actual controversies involving rights
2013 TRO, and that the consolidated petitions be dismissed II. Substantive Issues on the "Congressional Pork Barrel."
which are legally demandable and enforceable x x x."
for lack of merit.113
Jurisprudence provides that an actual case or controversy is
Whether or not the 2013 PDAF Article and all other one which "involves a conflict of legal rights, an assertion of
On September 24, 2013, the Court issued a Resolution of Congressional Pork Barrel Laws similar thereto are opposite legal claims, susceptible of judicial resolution as
even date directing petitioners to reply to the Comment. unconstitutional considering that they violate the principles distinguished from a hypothetical or abstract difference or
of/constitutional provisions on (a) separation of powers; (b) dispute.121 In other words, "there must be a contrariety of
non-delegability of legislative power; (c) checks and legal rights that can be interpreted and enforced on the basis
Petitioners, with the exception of Nepomuceno, filed their
balances; (d) accountability; (e) political dynasties; and (f) of existing law and jurisprudence."122 Related to the
respective replies to the Comment: (a) on September 30,
local autonomy. requirement of an actual case or controversy is the
2013, Villegas filed a separate Reply dated September 27,
requirement of "ripeness," meaning that the questions raised
2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al.
for constitutional scrutiny are already ripe for adjudication. "A
filed a Reply dated September 30, 2013 (Belgica Reply); and III. Substantive Issues on the "Presidential Pork Barrel."
question is ripe for adjudication when the act being
(c) on October 2, 2013, Alcantara filed a Reply dated
challenged has had a direct adverse effect on the individual
October 1, 2013.
Whether or not the phrases (a) "and for such other purposes challenging it. It is a prerequisite that something had then
as may be hereafter directed by the President" under Section been accomplished or performed by either branch before a
On October 1, 2013, the Court issued an Advisory providing 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to court may come into the picture, and the petitioner must
for the guidelines to be observed by the parties for the Oral finance the priority infrastructure development projects and allege the existence of an immediate or threatened injury to
Arguments scheduled on October 8, 2013. In view of the to finance the restoration of damaged or destroyed facilities itself as a result of the challenged action." 123 "Withal, courts
technicality of the issues material to the present cases, due to calamities, as may be directed and authorized by the will decline to pass upon constitutional issues through
incumbent Solicitor General Francis H. Jardeleza (Solicitor Office of the President of the Philippines" under Section 12 advisory opinions, bereft as they are of authority to resolve
General) was directed to bring with him during the Oral of PD 1869, as amended by PD 1993, relating to the hypothetical or moot questions."124
Arguments representative/s from the DBM and Congress Presidential Social Fund, are unconstitutional insofar as they
who would be able to competently and completely answer constitute undue delegations of legislative power.
Based on these principles, the Court finds that there exists
questions related to, among others, the budgeting process
an actual and justiciable controversy in these cases.
and its implementation. Further, the CoA Chairperson was
These main issues shall be resolved in the order that they
appointed as amicus curiae and thereby requested to appear
have been stated. In addition, the Court shall also tackle
before the Court during the Oral Arguments. The requirement of contrariety of legal rights is clearly
certain ancillary issues as prompted by the present cases.
satisfied by the antagonistic positions of the parties on the
constitutionality of the "Pork Barrel System." Also, the
On October 8 and 10, 2013, the Oral Arguments were
The Court’s Ruling questions in these consolidated cases are ripe for
conducted. Thereafter, the Court directed the parties to
adjudication since the challenged funds and the provisions
submit their respective memoranda within a period of seven
allowing for their utilization – such as the 2013 GAA for the
(7) days, or until October 17, 2013, which the parties The petitions are partly granted.
PDAF, PD 910 for the Malampaya Funds and PD 1869, as
subsequently did.
amended by PD 1993, for the Presidential Social Fund – are
I. Procedural Issues. currently existing and operational; hence, there exists an
The Issues Before the Court immediate or threatened injury to petitioners as a result of
the unconstitutional use of these public funds.
The prevailing rule in constitutional litigation is that no
Based on the pleadings, and as refined during the Oral question involving the constitutionality or validity of a law or
Arguments, the following are the main issues for the Court‘s governmental act may be heard and decided by the Court As for the PDAF, the Court must dispel the notion that the
resolution: unless there is compliance with the legal requisites for issues related thereto had been rendered moot and
judicial inquiry,117 namely: (a) there must be an actual case academic by the reforms undertaken by respondents. A case
or controversy calling for the exercise of judicial power; (b) becomes moot when there is no more actual controversy
I. Procedural Issues. between the parties or no useful purpose can be served in
the person challenging the act must have the standing to
passing upon the merits.125 Differing from this description, Solicitor General Jardeleza: No, Your Honor x x x. The COA is endowed with enough latitude to determine,
the Court observes that respondents‘ proposed line-item prevent, and disallow irregular, unnecessary, excessive,
budgeting scheme would not terminate the controversy nor extravagant or unconscionable expenditures of government
xxxx
diminish the useful purpose for its resolution since said funds. It is tasked to be vigilant and conscientious in
reform is geared towards the 2014 budget, and not the 2013 safeguarding the proper use of the government's, and
PDAF Article which, being a distinct subject matter, remains Justice Carpio: So that PDAF can be legally abolished only ultimately the people's, property. The exercise of its general
legally effective and existing. Neither will the President‘s in two (2) cases. Congress passes a law to repeal it, or this audit power is among the constitutional mechanisms that
declaration that he had already "abolished the PDAF" render Court declares it unconstitutional, correct? gives life to the check and balance system inherent in our
the issues on PDAF moot precisely because the Executive form of government.
branch of government has no constitutional authority to
Solictor General Jardeleza: Yes, Your Honor.
nullify or annul its legal existence. By constitutional design,
It is the general policy of the Court to sustain the decisions of
the annulment or nullification of a law may be done either by
administrative authorities, especially one which is
Congress, through the passage of a repealing law, or by the Justice Carpio: The President has no power to legally constitutionally-created, such as the CoA, not only on the
Court, through a declaration of unconstitutionality. Instructive abolish PDAF. (Emphases supplied)
basis of the doctrine of separation of powers but also for
on this point is the following exchange between Associate
their presumed expertise in the laws they are entrusted to
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor
Even on the assumption of mootness, jurisprudence, enforce. Findings of administrative agencies are accorded
General during the Oral Arguments:126
nevertheless, dictates that "the moot and academic‘ principle not only respect but also finality when the decision and order
is not a magical formula that can automatically dissuade the are not tainted with unfairness or arbitrariness that would
Justice Carpio: The President has taken an oath to faithfully Court in resolving a case." The Court will decide cases, amount to grave abuse of discretion. It is only when the CoA
execute the law,127 correct? Solicitor General Jardeleza: Yes, otherwise moot, if: first, there is a grave violation of the has acted without or in excess of jurisdiction, or with grave
Your Honor. Constitution; second, the exceptional character of the abuse of discretion amounting to lack or excess of
situation and the paramount public interest is involved; third, jurisdiction, that this Court entertains a petition questioning
when the constitutional issue raised requires formulation of its rulings. x x x. (Emphases supplied)
Justice Carpio: And so the President cannot refuse to
implement the General Appropriations Act, correct? controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet Thus, if only for the purpose of validating the existence of an
evading review.129
actual and justiciable controversy in these cases, the Court
Solicitor General Jardeleza: Well, that is our answer, Your
deems the findings under the CoA Report to be sufficient.
Honor. In the case, for example of the PDAF, the President
has a duty to execute the laws but in the face of the outrage The applicability of the first exception is clear from the
fundamental posture of petitioners – they essentially allege
over PDAF, the President was saying, "I am not sure that I The Court also finds the third exception to be applicable
will continue the release of the soft projects," and that grave violations of the Constitution with respect to, inter alia, largely due to the practical need for a definitive ruling on the
started, Your Honor. Now, whether or not that … the principles of separation of powers, non-delegability of system‘s constitutionality. As disclosed during the Oral
(interrupted) legislative power, checks and balances, accountability and Arguments, the CoA Chairperson estimates that thousands
local autonomy. of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this
Justice Carpio: Yeah. I will grant the President if there are
The applicability of the second exception is also apparent relation, Associate Justice Marvic Mario Victor F. Leonen
anomalies in the project, he has the power to stop the
from the nature of the interests involved (Justice Leonen) pointed out that all of these would
releases in the meantime, to investigate, and that is Section
eventually find their way to the courts.132 Accordingly, there
38 of Chapter 5 of Book 6 of the Revised Administrative
is a compelling need to formulate controlling principles
Code128 x x x. So at most the President can suspend, now if – the constitutionality of the very system within which relative to the issues raised herein in order to guide the
the President believes that the PDAF is unconstitutional, can significant amounts of public funds have been and continue bench, the bar, and the public, not just for the expeditious
he just refuse to implement it? to be utilized and expended undoubtedly presents a situation resolution of the anticipated disallowance cases, but more
of exceptional character as well as a matter of paramount importantly, so that the government may be guided on how
Solicitor General Jardeleza: No, Your Honor, as we were public interest. The present petitions, in fact, have been public funds should be utilized in accordance with
lodged at a time when the system‘s flaws have never before constitutional principles.
trying to say in the specific case of the PDAF because of the
CoA Report, because of the reported irregularities and this been magnified. To the Court‘s mind, the coalescence of the
Court can take judicial notice, even outside, outside of the CoA Report, the accounts of numerous whistle-blowers, and
the government‘s own recognition that reforms are needed Finally, the application of the fourth exception is called for by
COA Report, you have the report of the whistle-blowers, the
"to address the reported abuses of the the recognition that the preparation and passage of the
President was just exercising precisely the duty ….
PDAF"130 demonstrates a prima facie pattern of abuse which national budget is, by constitutional imprimatur, an affair of
only underscores the importance of the matter. It is also by annual occurrence.133 The relevance of the issues before the
xxxx this finding that the Court finds petitioners‘ claims as not Court does not cease with the passage of a "PDAF -free
merely theorized, speculative or hypothetical. Of note is the budget for 2014."134 The evolution of the "Pork Barrel
weight accorded by the Court to the findings made by the System," by its multifarious iterations throughout the course
Justice Carpio: Yes, and that is correct. You‘ve seen the of history, lends a semblance of truth to petitioners‘ claim
CoA which is the constitutionally-mandated audit arm of the
CoA Report, there are anomalies, you stop and investigate,
government. In Delos Santos v. CoA,131 a recent case that "the same dog will just resurface wearing a different
and prosecute, he has done that. But, does that mean that
wherein the Court upheld the CoA‘s disallowance of collar."135 In Sanlakas v. Executive Secretary,136 the
PDAF has been repealed? government had already backtracked on a previous course
irregularly disbursed PDAF funds, it was emphasized that:
of action yet the Court used the "capable of repetition but excess of jurisdiction on the part of any branch or they "dutifully contribute to the coffers of the National
evading review" exception in order "to prevent similar instrumentality of the Government." In Estrada v. Treasury."146 Clearly, as taxpayers, they possess the
questions from re- emerging."137 The situation similarly holds Desierto,142 the expanded concept of judicial power under requisite standing to question the validity of the existing
true to these cases. Indeed, the myriad of issues underlying the 1987 Constitution and its effect on the political question "Pork Barrel System" under which the taxes they pay have
the manner in which certain public funds are spent, if not doctrine was explained as follows:143 been and continue to be utilized. It is undeniable that
resolved at this most opportune time, are capable of petitioners, as taxpayers, are bound to suffer from the
repetition and hence, must not evade judicial review. unconstitutional usage of public funds, if the Court so rules.
To a great degree, the 1987 Constitution has narrowed the
Invariably, taxpayers have been allowed to sue where there
reach of the political question doctrine when it expanded the
is a claim that public funds are illegally disbursed or that
B. Matters of Policy: the Political Question Doctrine. power of judicial review of this court not only to settle actual
public money is being deflected to any improper purpose, or
controversies involving rights which are legally demandable
that public funds are wasted through the enforcement of an
and enforceable but also to determine whether or not there
The "limitation on the power of judicial review to actual cases invalid or unconstitutional law,147 as in these cases.
has been a grave abuse of discretion amounting to lack or
and controversies‖ carries the assurance that "the courts will
excess of jurisdiction on the part of any branch or
not intrude into areas committed to the other branches of
instrumentality of government. Heretofore, the judiciary has Moreover, as citizens, petitioners have equally fulfilled the
government."138 Essentially, the foregoing limitation is a
focused on the "thou shalt not's" of the Constitution directed standing requirement given that the issues they have raised
restatement of the political question doctrine which, under
against the exercise of its jurisdiction. With the new may be classified as matters "of transcendental importance,
the classic formulation of Baker v. Carr,139applies when there
provision, however, courts are given a greater prerogative to of overreaching significance to society, or of paramount
is found, among others, "a textually demonstrable
determine what it can do to prevent grave abuse of public interest."148 The CoA Chairperson‘s statement during
constitutional commitment of the issue to a coordinate
discretion amounting to lack or excess of jurisdiction on the the Oral Arguments that the present controversy involves
political department," "a lack of judicially discoverable and
part of any branch or instrumentality of government. Clearly, "not merely a systems failure" but a "complete breakdown of
manageable standards for resolving it" or "the impossibility of
the new provision did not just grant the Court power of doing controls"149 amplifies, in addition to the matters above-
deciding without an initial policy determination of a kind
nothing. x x x (Emphases supplied) discussed, the seriousness of the issues involved herein.
clearly for non- judicial discretion." Cast against this light,
Indeed, of greater import than the damage caused by the
respondents submit that the "the political branches are in the
illegal expenditure of public funds is the mortal wound
best position not only to perform budget-related reforms but It must also be borne in mind that ― when the judiciary
inflicted upon the fundamental law by the enforcement of an
also to do them in response to the specific demands of their mediates to allocate constitutional boundaries, it does not
invalid statute.150 All told, petitioners have sufficient locus
constituents" and, as such, "urge the Court not to impose a assert any superiority over the other departments; does not
standi to file the instant cases.
solution at this stage."140 in reality nullify or invalidate an act of the legislature or the
executive, but only asserts the solemn and sacred obligation
assigned to it by the Constitution."144 To a great extent, the D. Res Judicata and Stare Decisis.
The Court must deny respondents‘ submission.
Court is laudably cognizant of the reforms undertaken by its
co-equal branches of government. But it is by constitutional
Res judicata (which means a "matter adjudged") and stare
Suffice it to state that the issues raised before the Court do force that the Court must faithfully perform its duty.
decisis non quieta et movere (or simply, stare decisis which
not present political but legal questions which are within its Ultimately, it is the Court‘s avowed intention that a resolution
means "follow past precedents and do not disturb what has
province to resolve. A political question refers to "those of these cases would not arrest or in any manner impede the
been settled") are general procedural law principles which
questions which, under the Constitution, are to be decided endeavors of the two other branches but, in fact, help ensure
both deal with the effects of previous but factually similar
by the people in their sovereign capacity, or in regard to that the pillars of change are erected on firm constitutional
dispositions to subsequent cases. For the cases at bar, the
which full discretionary authority has been delegated to the grounds. After all, it is in the best interest of the people that
Court examines the applicability of these principles in
Legislature or executive branch of the Government. It is each great branch of government, within its own sphere,
relation to its prior rulings in Philconsa and LAMP.
concerned with issues dependent upon the wisdom, not contributes its share towards achieving a holistic and
legality, of a particular measure."141 The intrinsic genuine solution to the problems of society. For all these
constitutionality of the "Pork Barrel System" is not an issue reasons, the Court cannot heed respondents‘ plea for judicial The focal point of res judicata is the judgment. The principle
dependent upon the wisdom of the political branches of restraint. states that a judgment on the merits in a previous case
government but rather a legal one which the Constitution rendered by a court of competent jurisdiction would bind a
itself has commanded the Court to act upon. Scrutinizing the subsequent case if, between the first and second actions,
C. Locus Standi.
contours of the system along constitutional lines is a task there exists an identity of parties, of subject matter, and of
that the political branches of government are incapable of causes of action.151 This required identity is not, however,
rendering precisely because it is an exercise of judicial "The gist of the question of standing is whether a party attendant hereto since Philconsa and LAMP, respectively
power. More importantly, the present Constitution has not alleges such personal stake in the outcome of the involved constitutional challenges against the 1994 CDF
only vested the Judiciary the right to exercise judicial power controversy as to assure that concrete adverseness which Article and 2004 PDAF Article, whereas the cases at bar call
but essentially makes it a duty to proceed therewith. Section sharpens the presentation of issues upon which the court for a broader constitutional scrutiny of the entire "Pork Barrel
1, Article VIII of the 1987 Constitution cannot be any clearer: depends for illumination of difficult constitutional questions. System." Also, the ruling in LAMP is essentially a dismissal
"The judicial power shall be vested in one Supreme Court Unless a person is injuriously affected in any of his based on a procedural technicality – and, thus, hardly a
and in such lower courts as may be established by law. It constitutional rights by the operation of statute or ordinance, judgment on the merits – in that petitioners therein failed to
includes the duty of the courts of justice to settle actual he has no standing."145 present any "convincing proof x x x showing that, indeed,
controversies involving rights which are legally demandable there were direct releases of funds to the Members of
and enforceable, and to determine whether or not there has Congress, who actually spend them according to their sole
Petitioners have come before the Court in their respective
been a grave abuse of discretion amounting to lack or discretion" or "pertinent evidentiary support to demonstrate
capacities as citizen-taxpayers and accordingly, assert that
the illegal misuse of PDAF in the form of kickbacks and has reason against a wholesale application of the stare decisis System," "Congressional Pork Barrel," and "Presidential Pork
become a common exercise of unscrupulous Members of principle. Barrel" as they are essential to the ensuing discourse.
Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the
In addition, the Court observes that the Philconsa ruling was Petitioners define the term "Pork Barrel System" as the
2004 PDAF Article, and saw "no need to review or reverse
actually riddled with inherent constitutional inconsistencies "collusion between the Legislative and Executive branches of
the standing pronouncements in the said case." Hence, for
which similarly countervail against a full resort to stare government to accumulate lump-sum public funds in their
the foregoing reasons, the res judicata principle, insofar as
decisis. As may be deduced from the main conclusions of offices with unchecked discretionary powers to determine its
the Philconsa and LAMP cases are concerned, cannot apply.
the case, Philconsa‘s fundamental premise in allowing distribution as political largesse."156 They assert that the
Members of Congress to propose and identify of projects following elements make up the Pork Barrel System: (a)
On the other hand, the focal point of stare decisis is the would be that the said identification authority is but an aspect lump-sum funds are allocated through the appropriations
doctrine created. The principle, entrenched under Article of the power of appropriation which has been constitutionally process to an individual officer; (b) the officer is given sole
8152 of the Civil Code, evokes the general rule that, for the lodged in Congress. From this premise, the contradictions and broad discretion in determining how the funds will be
sake of certainty, a conclusion reached in one case should may be easily seen. If the authority to identify projects is an used or expended; (c) the guidelines on how to spend or use
be doctrinally applied to those that follow if the facts are aspect of appropriation and the power of appropriation is a the funds in the appropriation are either vague, overbroad or
substantially the same, even though the parties may be form of legislative power thereby lodged in Congress, then it inexistent; and (d) projects funded are intended to benefit a
different. It proceeds from the first principle of justice that, follows that: (a) it is Congress which should exercise such definite constituency in a particular part of the country and to
absent any powerful countervailing considerations, like authority, and not its individual Members; (b) such authority help the political careers of the disbursing official by yielding
cases ought to be decided alike. Thus, where the same must be exercised within the prescribed procedure of law rich patronage benefits.157 They further state that the Pork
questions relating to the same event have been put forward passage and, hence, should not be exercised after the GAA Barrel System is comprised of two (2) kinds of discretionary
by the parties similarly situated as in a previous case has already been passed; and (c) such authority, as public funds: first, the Congressional (or Legislative) Pork
litigated and decided by a competent court, the rule of stare embodied in the GAA, has the force of law and, hence, Barrel, currently known as the PDAF; 158 and, second, the
decisis is a bar to any attempt to re-litigate the same cannot be merely recommendatory. Justice Vitug‘s Presidential (or Executive) Pork Barrel, specifically, the
issue.153 Concurring Opinion in the same case sums up the Philconsa Malampaya Funds under PD 910 and the Presidential Social
quandary in this wise: "Neither would it be objectionable for Fund under PD 1869, as amended by PD 1993.159
Congress, by law, to appropriate funds for such specific
Philconsa was the first case where a constitutional challenge
projects as it may be minded; to give that authority, however,
against a Pork Barrel provision, i.e., the 1994 CDF Article, Considering petitioners‘ submission and in reference to its
to the individual members of Congress in whatever guise, I
was resolved by the Court. To properly understand its local concept and legal history, the Court defines the Pork
am afraid, would be constitutionally impermissible." As the
context, petitioners‘ posturing was that "the power given to Barrel System as the collective body of rules and practices
Court now largely benefits from hindsight and current
the Members of Congress to propose and identify projects that govern the manner by which lump-sum, discretionary
findings on the matter, among others, the CoA Report, the
and activities to be funded by the CDF is an encroachment funds, primarily intended for local projects, are utilized
Court must partially abandon its previous ruling in Philconsa
by the legislature on executive power, since said power in an through the respective participations of the Legislative and
insofar as it validated the post-enactment identification
appropriation act is in implementation of the law" and that Executive branches of government, including its members.
authority of Members of Congress on the guise that the
"the proposal and identification of the projects do not involve The Pork Barrel System involves two (2) kinds of lump-sum
same was merely recommendatory. This postulate raises
the making of laws or the repeal and amendment thereof, the discretionary funds:
serious constitutional inconsistencies which cannot be simply
only function given to the Congress by the Constitution."154 In
excused on the ground that such mechanism is "imaginative
deference to the foregoing submissions, the Court reached
as it is innovative." Moreover, it must be pointed out that the First, there is the Congressional Pork Barrel which is herein
the following main conclusions: one, under the Constitution,
recent case of Abakada Guro Party List v. defined as a kind of lump-sum, discretionary fund wherein
the power of appropriation, or the "power of the purse,"
Purisima155(Abakada) has effectively overturned Philconsa‘s legislators, either individually or collectively organized into
belongs to Congress; two, the power of appropriation carries
allowance of post-enactment legislator participation in view committees, are able to effectively control certain aspects of
with it the power to specify the project or activity to be funded
of the separation of powers principle. These constitutional the fund’s utilization through various post-enactment
under the appropriation law and it can be detailed and as
inconsistencies and the Abakada rule will be discussed in measures and/or practices. In particular, petitioners consider
broad as Congress wants it to be; and, three, the proposals
greater detail in the ensuing section of this Decision. the PDAF, as it appears under the 2013 GAA, as
and identifications made by Members of Congress are
Congressional Pork Barrel since it is, inter alia, a post-
merely recommendatory. At once, it is apparent that the
enactment measure that allows individual legislators to wield
Philconsa resolution was a limited response to a separation As for LAMP, suffice it to restate that the said case was
a collective power;160 and
of powers problem, specifically on the propriety of conferring dismissed on a procedural technicality and, hence, has not
post-enactment identification authority to Members of set any controlling doctrine susceptible of current application
Congress. On the contrary, the present cases call for a more to the substantive issues in these cases. In fine, stare decisis Second, there is the Presidential Pork Barrel which is herein
holistic examination of (a) the inter-relation between the CDF would not apply. defined as a kind of lump-sum, discretionary fund which
and PDAF Articles with each other, formative as they are of allows the President to determine the manner of its
the entire "Pork Barrel System" as well as (b) the intra- utilization. For reasons earlier stated,161 the Court shall
II. Substantive Issues.
relation of post-enactment measures contained within a delimit the use of such term to refer only to the Malampaya
particular CDF or PDAF Article, including not only those Funds and the Presidential Social Fund.
related to the area of project identification but also to the A. Definition of Terms.
areas of fund release and realignment. The complexity of the
issues and the broader legal analyses herein warranted may With these definitions in mind, the Court shall now proceed
be, therefore, considered as a powerful countervailing Before the Court proceeds to resolve the substantive issues to discuss the substantive issues of these cases.
of these cases, it must first define the terms "Pork Barrel
B. Substantive Issues on the Congressional Pork Barrel. Carague173 (Guingona, Jr.), the Court explained that the (1) scrutiny based primarily on Congress‘ power of
phase of budget execution "covers the various operational appropriation and the budget hearings conducted
aspects of budgeting" and accordingly includes "the in connection with it, its power to ask heads of
1. Separation of Powers.
evaluation of work and financial plans for individual departments to appear before and be heard by
activities," the "regulation and release of funds" as well as all either of its Houses on any matter pertaining to
a. Statement of Principle. "other related activities" that comprise the budget execution their departments and its power of confirmation;
cycle.174 This is rooted in the principle that the allocation of and
power in the three principal branches of government is a
The principle of separation of powers refers to the grant of all powers inherent in them.175 Thus, unless the
constitutional demarcation of the three fundamental powers (2) investigation and monitoring of the
Constitution provides otherwise, the Executive department
of government. In the celebrated words of Justice Laurel in implementation of laws pursuant to the power of
should exclusively exercise all roles and prerogatives which
Angara v. Electoral Commission,162 it means that the go into the implementation of the national budget as
Congress to conduct inquiries in aid of legislation.
"Constitution has blocked out with deft strokes and in bold provided under the GAA as well as any other appropriation
lines, allotment of power to the executive, the legislative and
law. Any action or step beyond that will undermine the separation
the judicial departments of the government."163 To the
of powers guaranteed by the Constitution. (Emphases
legislative branch of government, through
supplied)
Congress,164belongs the power to make laws; to the In view of the foregoing, the Legislative branch of
executive branch of government, through the government, much more any of its members, should not
President,165 belongs the power to enforce laws; and to the cross over the field of implementing the national budget b. Application.
judicial branch of government, through the Court,166 belongs since, as earlier stated, the same is properly the domain of
the power to interpret laws. Because the three great powers the Executive. Again, in Guingona, Jr., the Court stated that
"Congress enters the picture when it deliberates or acts on In these cases, petitioners submit that the Congressional
have been, by constitutional design, ordained in this respect,
the budget proposals of the President. Thereafter, Congress, Pork Barrel – among others, the 2013 PDAF Article –
"each department of the government has exclusive
"wrecks the assignment of responsibilities between the
cognizance of matters within its jurisdiction, and is supreme "in the exercise of its own judgment and wisdom, formulates
political branches" as it is designed to allow individual
within its own sphere."167 Thus, "the legislature has no an appropriation act precisely following the process
established by the Constitution, which specifies that no legislators to interfere "way past the time it should have
authority to execute or construe the law, the executive has
ceased" or, particularly, "after the GAA is passed." 179 They
no authority to make or construe the law, and the judiciary money may be paid from the Treasury except in accordance
state that the findings and recommendations in the CoA
has no power to make or execute the law."168 The principle of with an appropriation made by law." Upon approval and
passage of the GAA, Congress‘ law -making role necessarily Report provide "an illustration of how absolute and definitive
separation of powers and its concepts of autonomy and
comes to an end and from there the Executive‘s role of the power of legislators wield over project implementation in
independence stem from the notion that the powers of
implementing the national budget begins. So as not to blur complete violation of the constitutional principle of separation
government must be divided to avoid concentration of these
the constitutional boundaries between them, Congress must of powers."180 Further, they point out that the Court in the
powers in any one branch; the division, it is hoped, would
"not concern it self with details for implementation by the Philconsa case only allowed the CDF to exist on the
avoid any single branch from lording its power over the other
Executive."176 condition that individual legislators limited their role to
branches or the citizenry.169 To achieve this purpose, the
recommending projects and not if they actually dictate their
divided power must be wielded by co-equal branches of
implementation.181
government that are equally capable of independent action
The foregoing cardinal postulates were definitively
in exercising their respective mandates. Lack of
enunciated in Abakada where the Court held that "from the
independence would result in the inability of one branch of For their part, respondents counter that the separations of
moment the law becomes effective, any provision of law that
government to check the arbitrary or self-interest assertions powers principle has not been violated since the President
empowers Congress or any of its members to play any role
of another or others.170 maintains "ultimate authority to control the execution of the
in the implementation or enforcement of the law violates the
GAA‖ and that he "retains the final discretion to reject" the
principle of separation of powers and is thus
unconstitutional."177 It must be clarified, however, that since legislators‘ proposals.182 They maintain that the Court, in
Broadly speaking, there is a violation of the separation of
the restriction only pertains to "any role in the implementation Philconsa, "upheld the constitutionality of the power of
powers principle when one branch of government unduly
members of Congress to propose and identify projects so
encroaches on the domain of another. US Supreme Court or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and long as such proposal and identification are
decisions instruct that the principle of separation of powers
balances that the Constitution itself allows. But it must be recommendatory."183 As such, they claim that "everything in
may be violated in two (2) ways: firstly, "one branch may
the Special Provisions [of the 2013 PDAF Article follows the
interfere impermissibly with the other’s performance of its made clear that Congress‘ role must be confined to mere
Philconsa framework, and hence, remains constitutional."184
constitutionally assigned function";171 and "alternatively, the oversight. Any post-enactment-measure allowing legislator
doctrine may be violated when one branch assumes a participation beyond oversight is bereft of any constitutional
function that more properly is entrusted to another."172 In basis and hence, tantamount to impermissible interference The Court rules in favor of petitioners.
other words, there is a violation of the principle when there is and/or assumption of executive functions. As the Court ruled
impermissible (a) interference with and/or (b) assumption of in Abakada:178
another department‘s functions. As may be observed from its legal history, the defining
feature of all forms of Congressional Pork Barrel would be
Any post-enactment congressional measure x x x should be the authority of legislators to participate in the post-
The enforcement of the national budget, as primarily limited to scrutiny and investigation.1âwphi1 In particular, enactment phases of project implementation.
contained in the GAA, is indisputably a function both congressional oversight must be confined to the following:
constitutionally assigned and properly entrusted to the
Executive branch of government. In Guingona, Jr. v. Hon.
At its core, legislators – may it be through project this Fund, subject to among others (iii) the request is with the Solicitor General Jardeleza: Yes, Your Honor.
lists,185 prior consultations186 or program menus187 – have concurrence of the legislator concerned."
been consistently accorded post-enactment authority to
xxxx
identify the projects they desire to be funded through various
Clearly, these post-enactment measures which govern the
Congressional Pork Barrel allocations. Under the 2013
areas of project identification, fund release and fund
PDAF Article, the statutory authority of legislators to identify Justice Bernabe: In short, the act of identification is
realignment are not related to functions of congressional
projects post-GAA may be construed from the import of mandatory?
oversight and, hence, allow legislators to intervene and/or
Special Provisions 1 to 3 as well as the second paragraph of
assume duties that properly belong to the sphere of budget
Special Provision 4. To elucidate, Special Provision 1
execution. Indeed, by virtue of the foregoing, legislators have Solictor General Jardeleza: Yes, Your Honor. In the sense
embodies the program menu feature which, as evinced from
been, in one form or another, authorized to participate in – that if it is not done and then there is no identification.
past PDAF Articles, allows individual legislators to identify
as Guingona, Jr. puts it – "the various operational aspects of
PDAF projects for as long as the identified project falls under
budgeting," including "the evaluation of work and financial
a general program listed in the said menu. Relatedly, Special xxxx
plans for individual activities" and the "regulation and release
Provision 2 provides that the implementing agencies shall,
of funds" in violation of the separation of powers principle.
within 90 days from the GAA is passed, submit to Congress
The fundamental rule, as categorically articulated in Justice Bernabe: Now, would you know of specific instances
a more detailed priority list, standard or design prepared and
Abakada, cannot be overstated – from the moment the law when a project was implemented without the identification by
submitted by implementing agencies from which the
becomes effective, any provision of law that empowers the individual legislator?
legislator may make his choice. The same provision further
Congress or any of its members to play any role in the
authorizes legislators to identify PDAF projects outside his
implementation or enforcement of the law violates the
district for as long as the representative of the district Solicitor General Jardeleza: I do not know, Your Honor; I do
principle of separation of powers and is thus
concerned concurs in writing. Meanwhile, Special Provision not think so but I have no specific examples. I would doubt
unconstitutional.191 That the said authority is treated as
3 clarifies that PDAF projects refer to "projects to be very much, Your Honor, because to implement, there is a
merely recommendatory in nature does not alter its
identified by legislators"188 and thereunder provides the need for a SARO and the NCA. And the SARO and the NCA
unconstitutional tenor since the prohibition, to repeat, covers
allocation limit for the total amount of projects identified by are triggered by an identification from the legislator.
any role in the implementation or enforcement of the law.
each legislator. Finally, paragraph 2 of Special Provision 4
Towards this end, the Court must therefore abandon its
requires that any modification and revision of the project
ruling in Philconsa which sanctioned the conduct of legislator xxxx
identification "shall be submitted to the House Committee on
identification on the guise that the same is merely
Appropriations and the Senate Committee on Finance for
recommendatory and, as such, respondents‘ reliance on the
favorable endorsement to the DBM or the implementing Solictor General Jardeleza: What we mean by mandatory,
same falters altogether.
agency, as the case may be." From the foregoing special Your Honor, is we were replying to a question, "How can a
provisions, it cannot be seriously doubted that legislators legislator make sure that he is able to get PDAF Funds?" It is
have been accorded post-enactment authority to identify Besides, it must be pointed out that respondents have mandatory in the sense that he must identify, in that sense,
PDAF projects. nonetheless failed to substantiate their position that the Your Honor. Otherwise, if he does not identify, he cannot
identification authority of legislators is only of avail of the PDAF Funds and his district would not be able to
recommendatory import. Quite the contrary, respondents – have PDAF Funds, only in that sense, Your Honor.
Aside from the area of project identification, legislators have
through the statements of the Solicitor General during the (Emphases supplied)
also been accorded post-enactment authority in the areas of
Oral Arguments – have admitted that the identification of the
fund release and realignment. Under the 2013 PDAF Article,
legislator constitutes a mandatory requirement before his
the statutory authority of legislators to participate in the area Thus, for all the foregoing reasons, the Court hereby
PDAF can be tapped as a funding source, thereby
of fund release through congressional committees is declares the 2013 PDAF Article as well as all other
highlighting the indispensability of the said act to the entire
contained in Special Provision 5 which explicitly states that provisions of law which similarly allow legislators to wield any
budget execution process:192
"all request for release of funds shall be supported by the form of post-enactment authority in the implementation or
documents prescribed under Special Provision No. 1 and enforcement of the budget, unrelated to congressional
favorably endorsed by House Committee on Appropriations Justice Bernabe: Now, without the individual legislator’s oversight, as violative of the separation of powers principle
and the Senate Committee on Finance, as the case may be"; identification of the project, can the PDAF of the legislator be and thus unconstitutional. Corollary thereto, informal
while their statutory authority to participate in the area of utilized? practices, through which legislators have effectively intruded
fund realignment is contained in: first , paragraph 2, Special into the proper phases of budget execution, must be deemed
Provision 4189 which explicitly state s, among others, that as acts of grave abuse of discretion amounting to lack or
"any realignment of funds shall be submitted to the House Solicitor General Jardeleza: No, Your Honor.
excess of jurisdiction and, hence, accorded the same
Committee on Appropriations and the Senate Committee on unconstitutional treatment. That such informal practices do
Finance for favorable endorsement to the DBM or the Justice Bernabe: It cannot? exist and have, in fact, been constantly observed throughout
implementing agency, as the case may be‖ ; and, second , the years has not been substantially disputed here. As
paragraph 1, also of Special Provision 4 which authorizes pointed out by Chief Justice Maria Lourdes P.A. Sereno
the "Secretaries of Agriculture, Education, Energy, Interior Solicitor General Jardeleza: It cannot… (interrupted)
(Chief Justice Sereno) during the Oral Arguments of these
and Local Government, Labor and Employment, Public cases:193
Works and Highways, Social Welfare and Development and Justice Bernabe: So meaning you should have the Chief Justice Sereno:
Trade and Industry190 x x x to approve realignment from one identification of the project by the individual legislator?
project/scope to another within the allotment received from
Now, from the responses of the representative of both, the rule-making) or ascertaining facts to bring the law into actual similar legislative identification feature as herein discussed,
DBM and two (2) Houses of Congress, if we enforces the operation (contingent rule-making).199The conceptual as unconstitutional.
initial thought that I have, after I had seen the extent of this treatment and limitations of delegated rule-making were
research made by my staff, that neither the Executive nor explained in the case of People v. Maceren200 as follows:
3. Checks and Balances.
Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget
The grant of the rule-making power to administrative
process. In fact, the words you have been using, as the three a. Statement of Principle; Item-Veto Power.
agencies is a relaxation of the principle of separation of
lawyers of the DBM, and both Houses of Congress has also
powers and is an exception to the nondelegation of
been using is surprise; surprised that all of these things are
legislative powers. Administrative regulations or "subordinate The fact that the three great powers of government are
now surfacing. In fact, I thought that what the 2013 PDAF
legislation" calculated to promote the public interest are intended to be kept separate and distinct does not mean that
provisions did was to codify in one section all the past
necessary because of "the growing complexity of modern they are absolutely unrestrained and independent of each
practice that had been done since 1991. In a certain sense,
life, the multiplication of the subjects of governmental other. The Constitution has also provided for an elaborate
we should be thankful that they are all now in the PDAF
regulations, and the increased difficulty of administering the system of checks and balances to secure coordination in the
Special Provisions. x x x (Emphasis and underscoring
supplied)
law." workings of the various departments of the government.203
SO ORDERED. xxxx
The present case involves the creation of a local government
unit that necessarily involves also the creation of a legislative
district. The Court will not pass upon the constitutionality of G.R. No. 156208 September 26, 2006 Section 3. Scope. – This Act shall provide a
the creation of municipalities and barangays that does not framework for the restructuring of the electric
comply with the criteria established in Section 461 of RA power industry, including the privatization of the
NPC DRIVERS AND MECHANICS ASSOCIATION, (NPC
7160, as mandated in Section 10, Article X of the assets of NPC, the transition to the desired
DAMA), represented by Its President ROGER S. SAN
Constitution, because the creation of such municipalities and competitive structure, and the definition of the
JUAN, SR., NPC EMPLOYEES & WORKERS UNION
barangays does not involve the creation of legislative responsibilities of the various government
(NEWU) – NORTHERN LUZON REGIONAL CENTER,
districts. We leave the resolution of this issue to an agencies and private entities.1
represented by its Regional President JIMMY D.
appropriate case.
SALMAN, in their own individual capacities and in behalf
of the members of the associations and all affected Under the EPIRA Law,2 a new National Power Board of
In summary, we rule that Section 19, Article VI of RA 9054, officers and employees of National Power Corporation Directors was constituted composed of the Secretary of
insofar as it grants to the ARMM Regional Assembly the (NPC), ZOL D. MEDINA, NARCISO M. MAGANTE, Finance as Chairman, with the Secretary of Energy, the
power to create provinces and cities, is void for being VICENTE B. CIRIO, JR., NECITAS B. CAMAMA, in their Secretary of Budget and Management, the Secretary of
contrary to Section 5 of Article VI and Section 20 of Article X individual capacities as employees of National Power Agriculture, the Director-General of the National Economic
of the Constitution, as well as Section 3 of the Ordinance Corporation, petitioners, and Development Authority, the Secretary of Environment
appended to the Constitution. Only Congress can create vs. and Natural Resources, the Secretary of Interior and Local
provinces and cities because the creation of provinces and THE NATIONAL POWER CORPORATION (NPC), Government, the Secretary of the Department of Trade and
cities necessarily includes the creation of legislative districts, NATIONAL POWER BOARD OF DIRECTORS (NPB), Industry, and the President of the National Power
a power only Congress can exercise under Section 5, Article JOSE ISIDRO N. CAMACHO as Chairman of the National Corporation as members.
VI of the Constitution and Section 3 of the Ordinance Power Board of Directors (NPB), ROLANDO S. QUILALA,
appended to the Constitution. The ARMM Regional as President – Officer-in-charge/CEO of National Power
Assembly cannot create a province without a legislative On 27 February 2002, the Secretary of the Department of
Corporation and Member of National Power Board, and
district because the Constitution mandates that every Energy (DOE) promulgated the Implementing Rules and
VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS
province shall have a legislative district. Moreover, the Regulations (IRR) of the EPIRA Law, pursuant to Section
P. CORPUS, RUBEN S. REINOSO, JR., GREGORY L.
ARMM Regional Assembly cannot enact a law creating a 773 thereof. Said IRR were approved by the Joint
DOMINGO and NIEVES L. OSORIO, respondents.
Congressional Power Commission on even date. Meanwhile,
national office like the office of a district representative of
Congress because the legislative powers of the ARMM also in pursuant to the provisions of the EPIRA Law, the
Regional Assembly operate only within its territorial DECISION DOE created the Energy Restructuring Steering Committee
(Restructuring Committee) to manage the privatization and
jurisdiction as provided in Section 20, Article X of the
Constitution. Thus, we rule that MMA Act 201, enacted by restructuring of the NPC, the National Transmission
CHICO-NAZARIO, J.:
the ARMM Regional Assembly and creating the Province of Corporation (TRANSCO), and the Power Sector Assets and
Liabilities Corporation (PSALM).
Shariff Kabunsuan, is void.
Before Us is a special civil action for Injunction to enjoin
public respondents from implementing the National Power
Resolution No. 7902 Complies with the Constitution To serve as the overall organizational framework for the
Board (NPB) Resolutions No. 2002-124 and No. 2002-125,
realigned functions of the NPC mandated under the EPIRA
both dated 18 November 2002, directing, among other
Law, the Restructuring Committee proposed a new NPC
Consequently, we hold that COMELEC Resolution No. 7902, things, the termination of all employees of the National
Table of Organization which was approved by the NPB
preserving the geographic and legislative district of the First Power Corporation (NPC) on 31 January 2003 in line with
through NPB Resolution No. 2002-53 dated 11 April 2002.
the restructuring of the NPC.
District of Maguindanao with Cotabato City, is valid as it Likewise, the Restructuring Committee reviewed the
merely complies with Section 5 of Article VI and Section 20 proposed 2002 NPC Restructuring Plan and assisted in the
of Article X of the Constitution, as well as Section 1 of the On 8 June 2001, Republic Act No. 9136, otherwise known as implementation of Phase I (Realignment) of said Plan, and
Ordinance appended to the Constitution. the "Electric Power Industry Reform Act of 2001" (EPIRA thereafter recommended to the NPB for approval the
Law), was approved and signed into law by President Gloria adoption of measures pertaining to the separation and hiring
Macapagal-Arroyo, and took effect on 26 June 2001. Section of NPC personnel. The NPB, taking into consideration the
WHEREFORE, we declare Section 19, Article VI of Republic
2(i) and Section 3 of the EPIRA Law states: recommendation of the Restructuring Committee, thus
Act No. 9054 UNCONSTITUTIONAL insofar as it grants to
amended the Restructuring Plan approved under NPB
the Regional Assembly of the Autonomous Region in Muslim
Resolution No. 2002-53.
Mindanao the power to create provinces and cities. Thus, we Section 2. Declaration of Policy. – It is hereby
declare VOID Muslim Mindanao Autonomy Act No. 201 declared the policy of the State:
On 18 November 2002, pursuant to Section 634 of the petitioners conclude that the questioned Resolutions have claim that the validity of such administrative practice
EPIRA Law and Rule 335 of the IRR, the NPB passed NPB been illegally issued as it were not issued by a duly whereby an authority is exercised by persons or
Resolution No. 2002-124 which provided for the Guidelines constituted board since no quorum existed because only subordinates appointed by the responsible official has long
on the Separation Program of the NPC and the Selection three of the nine members, as provided under Section 48 of been settled. Respondents further contend that Section 48 of
and Placement of Personnel in the NPC Table of the EPIRA Law, were present and qualified to sit and vote. the EPIRA Law does not in any way prohibit any member of
Organization. Under said Resolution, all NPC personnel shall the NPB from authorizing his representative to sign
be legally terminated on 31 January 2003, and shall be resolutions adopted by the Board.
It is petitioners' submission that even
entitled to separation benefits. On the same day, the NPB
assuming arguendo that there was no undue delegation of
approved NPB Resolution No. 2002-125, whereby a
power to the four representatives who signed the assailed From the arguments put forward by herein parties, it is
Transition Team was constituted to manage and implement
Resolutions, said Resolutions cannot still be given legal evident that the pivotal issue to be resolved in this Petition
the NPC's Separation Program.
effect because the same did not comply with the mandatory for Injunction is whether or not NPB Resolutions No. 2002-
requirement of endorsement by the Joint Congressional 124 and No. 2002-125 were properly enacted. It is
In a Memorandum dated 21 November 2002, the NPC OIC- Power Commission and approval of the President of the petitioners' contention that the failure of the four specifically
President and CEO Rolando S. Quilala circulated the Philippines, as provided under Section 47 of the EPIRA Law identified department heads7 under Section 48 of the EPIRA
assailed Resolutions and directed the concerned NPC which states that: Law to personally approve and sign the assailed Resolutions
officials to disseminate and comply with said Resolutions invalidates the adoption of said Resolutions. Petitioners
and implement the same within the period provided for in the maintain that there was undue delegation of delegated
Section 47. NPC Privatization. – Except for the
timetable set in NPB Resolution No. 2002-125. As a result power when only the representatives of certain members of
assets of SPUG, the generation assets, real
thereof, Mr. Paquito F. Garcia, Manager – HRSD and the NPB attended the board meetings and passed and
estate, and other disposable assets as well as IPP
Resources and Administration Coordinator of NPC, signed the questioned Resolutions.
contracts of NPC shall be privatized in accordance
circulated a Memorandum dated 22 November 2002 to all
with this Act. Within six (6) months from effectivity
NPC officials and employees providing for a checklist of the
of this Act, the PSALM Corp. shall submit a plan We agree with petitioners. In enumerating under Section 48
documents required for securing clearances for the
for the endorsement by the Joint Congressional those who shall compose the National Power Board of
processing of separation benefits of all employees who shall
Power Commission and the approval of the Directors, the legislature has vested upon these persons the
be terminated under the Restructuring Plan.
President of the Philippines, on the total power to exercise their judgment and discretion in running
privatization of the generation assets, real estate, the affairs of the NPC. Discretion may be defined as "the act
Contending that the assailed NPB Resolutions are void and other disposable assets as well as existing IPP or the liberty to decide according to the principles of justice
without force and effect, herein petitioners, in their individual contracts of NPC and thereafter, implement the and one's ideas of what is right and proper under the
and representative capacities, filed the present Petition for same, in accordance with the following guidelines, circumstances, without willfulness or favor.8 Discretion, when
Injunction to restrain respondents from implementing NPB except as provided for in paragraph (f) herein: x x applied to public functionaries, means a power or right
Resolutions No. 2002-124 and No. 2002-125. In support x. conferred upon them by law of acting officially in certain
thereof, petitioners invoke Section 78 of the EPIRA Law, to circumstances, according to the dictates of their own
wit: judgment and conscience, uncontrolled by the judgment or
Petitioners insist that if ever there exists a valid wholesale
conscience of others.9 It is to be presumed that in naming
abolition of their positions and their concomitant separation
the respective department heads as members of the board
Section 78. Injunction and Restraining Order. – form the service, such a process is an integral part of
of directors, the legislature chose these secretaries of the
The implementation of the provisions of this Act "privatization" and "restructuring" as defined under the
various executive departments on the basis of their personal
shall not be restrained or enjoined except by an EPIRA Law and, therefore, must comply with the above-
qualifications and acumen which made them eligible to
order issued by the Supreme Court of the quoted provision requiring the endorsement of the Joint
occupy their present positions as department heads. Thus,
Philippines. Congressional Power Commission and the approval of the
the department secretaries cannot delegate their duties as
President of the Philippines. Furthermore, petitioner highlight
members of the NPB, much less their power to vote and
the fact that said Resolutions will have an adverse effect on
In assailing the validity of NPB Resolutions No. 2002-124 approve board resolutions, because it is their personal
about 5,648 employees of the NPC and will result in the
and No. 2002-125, petitioners maintain that said Resolutions judgment that must be exercised in the fulfillment of such
displacement of some 2,370 employees, which, petitioners
were not passed and issued by a majority of the members of responsibility.
argue, is contrary to the mandate of the Constitution to
the duly constituted Board of Directors since only three of its
promote full employment and security of tenure.
members, as provided under Section 486 of the EPIRA Law,
There is no question that the enactment of the assailed
were present, namely: DOE Secretary Vincent S. Perez, Jr.;
Resolutions involves the exercise of discretion and not
Department of Budget and Management Secretary Emilia T. Respondents, on the other hand, uphold the validity of the
merely a ministerial act that could be validly performed by a
Boncodin; and NPC OIC-President Rolando S. Quilala. assailed Resolutions by arguing that while it is true that four
delegate, thus, the rule enunciated in the case of Binamira v.
According to petitioners, the other four members who were members of the National Power Board of Directors,
Garrucho10 is relevant in the present controversy, to wit:
present at the meeting and signed the Resolutions were not particularly the respective Secretaries of the Department of
the secretaries of their respective departments but were Interior and Local Government, the Department of Trade and
merely representatives or designated alternates of the Industry, and the Department of Finance, as well as the An officer to whom a discretion is entrusted cannot
officials who were named under the EPIRA Law to sit as Director-General of the National Economic and Development delegate it to another, the presumption being that
members of the NPB. Petitioners claim that the acts of these Authority, were not the actual signatories in NPB Resolutions he was chosen because he was deemed fit and
representatives are violative of the well-settled principle that No. 2002-124 and No. 2002-125, they were, however, ably competent to exercise that judgment and
"delegated power cannot be further delegated." Thus, represented by their respective alternates. Respondents discretion, and unless the power to substitute
another in his place has been given to him, he WHEREFORE, premises considered, National Power Board
cannot delegate his duties to another. Resolutions No. 2002-124 and No. 2002-125 are hereby
declared VOID and WITHOUT LEGAL EFFECT. The
Petition for Injunction is hereby GRANTED and respondents
In those cases in which the proper execution of the
are hereby ENJOINED from implementing said NPB
office requires, on the part of the officer, the
Resolutions No. 2002-124 and No. 2002-125.
exercise of judgment or discretion, the
presumption is that he was chosen because he
was deemed fit and competent to exercise that SO ORDERED.
judgment and discretion, and, unless power to
substitute another in his place has been given to
him, he cannot delegate his duties to another.