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ATTY. ROMULO B. MACALINTAL, G.R. No.

191618
Petitioner,

- versus -

PRESIDENTIAL ELECTORAL TRIBUNAL,


Respondent.
x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Confronting us is an undesignated petition[1] filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that questions the
constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized progeny of Section 4,[2] Article VII of the
Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

While petitioner concedes that the Supreme Court is “authorized to promulgate its rules for the purpose,” he chafes
at the creation of a purportedly “separate tribunal” complemented by a budget allocation, a seal, a set of personnel and
confidential employees, to effect the constitutional mandate. Petitioner’s averment is supposedly supported by the provisions
of the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),[3] specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the Associate Justices are
designated as “Chairman and Members,” respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and confidential employees of every
member thereof;

(3) Rule 9 which provides for a separate “Administrative Staff of the Tribunal” with the appointment of a Clerk and a
Deputy Clerk of the Tribunal who, at the discretion of the PET, may designate the Clerk of Court (en banc) as the Clerk of the
Tribunal; and

(4) Rule 11 which provides for a “seal” separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision does allow the
“appointment of additional personnel.”

Further, petitioner highlights our decision in Buac v. COMELEC[4] which peripherally declared that “contests
involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, x x x in the exercise of
quasi-judicial power.” On this point, petitioner reiterates that the constitution of the PET, with the designation of the
Members of the Court as Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution, which
prohibits the designation of Members of the Supreme Court and of other courts established by law to any agency performing
quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment[5] thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is unspecified and without
statutory basis; “the liberal approach in its preparation x x x is a violation of the well known rules of practice and pleading in
this jurisdiction.”

In all, the OSG crystallizes the following issues for resolution of the Court:
I
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A
VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS OF THE PRESIDENTIAL
ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987
CONSTITUTION.[6]
In his Reply,[7] petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance of the issues raised
therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4, Article VII of the
Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section 12, Article VIII of
the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of the PET,
composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of
the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the present petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;


2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination of the case itself.[8]

On more than one occasion we have characterized a proper party as one who has sustained or is in immediate danger
of sustaining an injury as a result of the act complained of.[9] The dust has long settled on the test laid down in Baker v.
Carr:[10]“whether the party has alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
questions.”[11] Until and unless such actual or threatened injury is established, the complainant is not clothed with legal
personality to raise the constitutional question.

Our pronouncements in David v. Macapagal-Arroyo[12] illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right” in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is
affected no differently from any other person. He could be suing as a “stranger,” or in the category of a “citizen,” or
“taxpayer.” In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a” citizen” or “taxpayer.”

xxx

However, to prevent just about any person from seeking judicial interference in any official policy or act with which
he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United States
Supreme Court laid down the more stringent “direct injury” test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The
same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he
has a general interest common to all members of the public.

This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera, it held that the person who impugns
the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain
direct injury as a result.” TheVera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League
of the Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the
“transcendental importance” of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the “far-reaching implications” of
the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there
is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.

xxxx

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

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which
must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized interest in the
outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds and the issue
raised herein is of transcendental importance, it is petitioner’s humble submission that, as a citizen, a taxpayer and a member
of the BAR, he has the legal standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the petition, i.e., his
appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-Arroyo) in the election protest filed by 2004
presidential candidate Fernando Poe, Jr. before the Presidential Electoral Tribunal,[13] because judicial inquiry, as mentioned
above, requires that the constitutional question be raised at the earliest possible opportunity.[14] Such appearance as counsel
before the Tribunal, to our mind, would have been the first opportunity to challenge the constitutionality of the Tribunal’s
constitution.

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is unmistakably
estopped from assailing the jurisdiction of the PET before which tribunal he had ubiquitously appeared and had acknowledged
its jurisdiction in 2004. His failure to raise a seasonable constitutional challenge at that time, coupled with his unconditional
acceptance of the Tribunal’s authority over the case he was defending, translates to the clear absence of an indispensable
requisite for the proper invocation of this Court’s power of judicial review. Even on this score alone, the petition ought to be
dismissed outright.

Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion to affirm the
grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the auspicious case of Tecson v. Commission on
Elections.[15] Thus

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions of Article VII,
Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA
No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to
designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to
declare, in Lopez vs. Roxas, as “not (being) justiciable” controversies or disputes involving contests on the elections, returns
and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests
Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of
Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the
members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973
Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed
revived under the present Section 4, paragraph 7, of the 1987 Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson
and Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:
“The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election, returns and
qualifications of the President or Vice President and may promulgate its rules for the purpose.”
The word “contest” in the provision means that the jurisdiction of this Court can only be invoked after the election
and proclamation of a President or Vice President. There can be no “contest” before a winner is proclaimed.[16]

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:


G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of Section 4, Article
VII of the 1987 Constitution. I agree with the majority opinion that these petitions should be dismissed outright for
prematurity. The Court has no jurisdiction at this point of time to entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET) and House of
Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically and exclusively clothed with jurisdiction by
the Constitution to act respectively as “sole judge of all contests relating to the election, returns, and qualifications” of the
President and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate has already been proclaimed winner in an
election. Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal provide that, for President or Vice-President,
election protest or quo warranto may be filed after the proclamation of the winner.[17]

Petitioner, a prominent election lawyer who has filed several cases before this Court involving constitutional and
election law issues, including, among others, the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The
Overseas Absentee Voting Act of 2003),[18] cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4,
Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework affirmed
in Tecson v. Commission on Elections[19] is that the Supreme Court has original jurisdiction to decide presidential and vice-
presidential election protests while concurrently acting as an independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does not authorize the
constitution of the PET. And although he concedes that the Supreme Court may promulgate its rules for this purpose,
petitioner is insistent that the constitution of the PET is unconstitutional. However, petitioner avers that it allows the Court to
appoint additional personnel for the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick. But these
arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to promulgate. Apparently, petitioner’s
concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to petitioner’s opinion, we are
guided by well-settled principles of constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their ordinary meaning
except where technical terms are employed, in which case the significance thus attached to them prevails. This Court,
speaking through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration[20] instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should
ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have
in common use. What it says according to the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance
with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history of the times,
and the condition and circumstances surrounding the framing of the Constitution.[21] In following this guideline, courts should
bear in mind the object sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied.[22]Consequently, the intent of the framers and the people ratifying the constitution, and not the
panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus in the
landmark case ofCivil Liberties Union v. Executive Secretary:[23]

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be


separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make the words idle and nugatory.

We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., [24] to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for
the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone,
but in conjunction with all other provisions of that great document.
On its face, the contentious constitutional provision does not specify the establishment of the PET. But neither does it
preclude, much less prohibit, otherwise. It entertains divergent interpretations which, though unacceptable to petitioner, do
not include his restrictive view – one which really does not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other related provisions of
the Constitution such as the parallel provisions on the Electoral Tribunals of the Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework of judicial power
mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme Court’s constitutional mandate to act as sole
judge of election contests involving our country’s highest public officials, and its rule-making authority in connection
therewith, is not restricted; it includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:[25]

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To
recall the words of Justice Laurel in Angara v. Electoral Commission, “the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial departments of the government.” Thus, the
1987 Constitution explicitly provides that “[t]he legislative power shall be vested in the Congress of the Philippines” [Art. VI,
Sec. 1], “[t]he executive power shall be vested in the President of the Philippines” [Art. VII, Sec. 1], and “[t]he judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law” [Art. VIII, Sec. 1]. These
provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive and
judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis pointed out “a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government.”

The Court could not have been more explicit then on the plenary grant and exercise of judicial power. Plainly,
the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal grant of jurisdiction in
the last paragraph of Section 4, Article VII of the Constitution is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive branch of
government, and the constitution of the PET, is evident in the discussions of the Constitutional Commission. On the exercise of
this Court’s judicial power as sole judge of presidential and vice-presidential election contests, and to promulgate its rules for
this purpose, we find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words “Vice-President,” I propose to add AND MAY PROMULGATE ITS RULES FOR
THE PURPOSE. This refers to the Supreme Court sitting en banc. This is also to confer on the Supreme Court exclusive
authority to enact the necessary rules while acting as sole judge of all contests relating to the election, returns and
qualifications of the President or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with respect to its
internal procedure is already implicit under the Article on the Judiciary; considering, however, that according to the
Commissioner, the purpose of this is to indicate the sole power of the Supreme Court without intervention by the
legislature in the promulgation of its rules on this particular point, I think I will personally recommend its acceptance to the
Committee.[26]

xxxx

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an Electoral
Tribunal in the Senate and a Commission on Appointments which may cover membership from both Houses. But my question
is: It seems to me that the committee report does not indicate which body should promulgate the rules that shall govern the
Electoral Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body distinct and
independent already from the House, and so with the Commission on Appointments also. It will have the authority to
promulgate its own rules.[27]

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to former Chief
Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a
judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the
President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable
questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the
Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of
ballots or election returns, Madam President.[28]

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice Florenz D.
Regalado[29]and Fr. Joaquin Bernas[30] both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth paragraph of
Section 4 provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns and
qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests relating
to the election returns and qualifications of the President or Vice-President is purely a political matter and, therefore,
should not be left entirely to the judiciary. Will the above-quoted provision not impinge on the doctrine of separation of
powers between the executive and the judicial departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision incidentally. It was not in
the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to the judiciary
because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic Act 7950 which
provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore, they are
cognizable only by courts. If, for instance, we did not have a constitutional provision on an electoral tribunal for the Senate
or an electoral tribunal for the House, normally, as composed, that cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that in that election,
Lopez was declared winner. He filed a protest before the Supreme Court because there was a republic act which created the
Supreme Court as the Presidential Electoral Tribunal. The question in this case was whether new powers could be given the
Supreme Court by law. In effect, the conflict was actually whether there was an attempt to create two Supreme Courts and
the answer of the Supreme Court was: “No, this did not involve the creation of two Supreme Courts, but precisely we are
giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate various jurisdictions.”

Before the passage of that republic act, in case there was any contest between two presidential candidates or
two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary to create a Presidential Electoral
Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of
powers because the power being given to the Supreme Court is a judicial power.[31]

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-presidential election
contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive as petitioner would interpret it. In
fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to
exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented
and then emphasized that the sole power ought to be without intervention by the legislative department. Evidently, even the
legislature cannot limit the judicial power to resolve presidential and vice-presidential election contests and our rule-making
power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot
be denied.[32]

Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the present
Constitution did not contain similar provisions and instead vested upon the legislature all phases of presidential and vice-
presidential elections – from the canvassing of election returns, to the proclamation of the president-elect and the vice-
president elect, and even the determination, by ordinary legislation, of whether such proclamations may be contested. Unless
the legislature enacted a law creating an institution that would hear election contests in the Presidential and Vice-Presidential
race, a defeated candidate had no legal right to demand a recount of the votes cast for the office involved or to challenge the
ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential contests were non-justiciable in the
then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a similar
provision in its pattern, the Federal Constitution of the United States. Rather, the creation of such tribunal was left to the
determination of the National Assembly. The journal of the 1935 Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision with
respect to the entity or body which will look into the protests for the positions of the President and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that.[33]

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing an independent
PET to try, hear, and decide protests contesting the election of President and Vice-President. The Chief Justice and the
Associate Justices of the Supreme Court were tasked to sit as its Chairman and Members, respectively. Its composition was
extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for
ill, absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings. It was
mandated to sit en banc in deciding presidential and vice-presidential contests and authorized to exercise powers similar to
those conferred upon courts of justice, including the issuance of subpoena, taking of depositions, arrest of witnesses to
compel their appearance, production of documents and other evidence, and the power to punish contemptuous acts and
bearings. The tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient performance of its
functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the bicameral
legislature under the 1935 Constitution with the unicameral body of a parliamentary government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not directly chosen by
the people but elected from among the members of the National Assembly, while the position of Vice-President was
constitutionally non-existent.

In 1981, several modifications were introduced to the parliamentary system. Executive power was restored to the
President who was elected directly by the people. An Executive Committee was formed to assist the President in the
performance of his functions and duties. Eventually, the Executive Committee was abolished and the Office of Vice-President
was installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December 3, 1985, Batas Pambansa
Bilang (B.P. Blg.) 884, entitled “An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide
Election Contests in the Office of the President and Vice-President of the Philippines, Appropriating Funds Therefor and For
Other Purposes.” This tribunal was composed of nine members, three of whom were the Chief Justice of the Supreme Court
and two Associate Justices designated by him, while the six were divided equally between representatives of the majority and
minority parties in the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to recommend the
prosecution of persons, whether public officers or private individuals, who in its opinion had participated in any irregularity
connected with the canvassing and/or accomplishing of election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the national
treasury or Special Activities Fund for its operational expenses. It was empowered to appoint its own clerk in accordance with
its rules. However, the subordinate officers were strictly employees of the judiciary or other officers of the government who
were merely designated to the tribunal.

After the historic People Power Revolution that ended the martial law era and installed Corazon Aquino as President,
civil liberties were restored and a new constitution was formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then statutory PET into a
constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given
to the Supreme Court is a judicial power.[34]

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His arguments that: (1)
the Chief Justice and Associate Justices are referred to as “Chairman” and “Members,” respectively; (2) the PET uses a
different seal; (3) the Chairman is authorized to appoint personnel; and (4) additional compensation is allocated to the
“Members,” in order to bolster his claim of infirmity in the establishment of the PET, are too superficial to merit further
attention by the Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article VII of
the Constitution, composed of members of the Supreme Court, sitting en banc. The following exchange in the 1986
Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election, returns and
qualifications of the President or Vice-President.

Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc as the
sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme Court was able to
dispose of each case in a period of one year as provided by law. Of course, that was probably during the late 1960s and
early 1970s. I do not know how the present Supreme Court would react to such circumstances, but there is also the
question of who else would hear the election protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules provided for the
hearings and there is not time limit or duration for the election contest to be decided by the Supreme Court. Also, we will
have to consider the historical background that when R.A. 1793, which organized the Presidential Electoral Tribunal, was
promulgated on June 21, 1957, at least three famous election contests were presented and two of them ended up in
withdrawal by the protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring to the
electoral protest that was lodged by former President Carlos P. Garcia against our “kabalen” former President Diosdado
Macapagal in 1961 and the vice-presidential election contest filed by the late Senator Gerardo Roxas against Vice-President
Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of Senator Roxas was
withdrawn, the results were already available. Senator Roxas did not want to have a decision adverse to him. The votes were
being counted already, and he did not get what he expected so rather than have a decision adverse to his protest, he
withdrew the case.

xxxx

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme Court this matter of
resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a judicial
power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the
President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable
questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the
Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of
ballots or election returns, Madam President.

MR. CONCEPCION. The time consumed or to be consumed in this contest for President is dependent upon they key
number of teams of revisors. I have no experience insofar as contests in other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before teams of three,
generally, a representative each of the court, of the protestant and of the “protestee.” It is all a questions of how many
teams are organized. Of course, that can be expensive, but it would be expensive whatever court one would choose. There
were times that the Supreme Court, with sometimes 50 teams at the same time working, would classify the objections, the
kind of problems, and the court would only go over the objected votes on which the parties could not agree. So it is not as
awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of the revision of the ballots
because each party would have to appoint one representative for every team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what would be the
reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always manages to dispose of the
case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.[35]

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to undertake the
Herculean task of deciding election protests involving presidential and vice-presidential candidates in accordance with the
process outlined by former Chief Justice Roberto Concepcion. It was made in response to the concern aired by delegate Jose E.
Suarez that the additional duty may prove too burdensome for the Supreme Court. This explicit grant of independence and of
the plenary powers needed to discharge this burden justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an “awesome” task,
includes the means necessary to carry it into effect under the doctrine of necessary implication.[36] We cannot overemphasize
that the abstraction of the PET from the explicit grant of power to the Supreme Court, given our abundant experience, is not
unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme Court
sitting en banc. In the same vein, although the method by which the Supreme Court exercises this authority is not specified in
the provision, the grant of power does not contain any limitation on the Supreme Court’s exercise thereof. The Supreme
Court’s method of deciding presidential and vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the
provision for the Supreme Court to “promulgate its rules for the purpose.”

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority conferred upon the
electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of
Representatives Electoral Tribunal (HRET),[37] which we have affirmed on numerous occasions.[38]

Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of the SET and the
HRET. The discussions point to the inevitable conclusion that the different electoral tribunals, with the Supreme Court
functioning as the PET, are constitutional bodies, independent of the three departments of government – Executive,
Legislative, and Judiciary – but not separate therefrom.

MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of
the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the
case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not
constitutional creations. Is that a good distinction?

xxxx

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is
a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil. 192, will still be
applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the
government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the
executive and the judiciary; but they are constitutional bodies.[39]

The view taken by Justices Adolfo S. Azcuna[40] and Regalado E. Maambong[41] is schooled by our holding
in Lopez v. Roxas, et al.:[42]

Section 1 of Republic Act No. 1793, which provides that:

“There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of all contests
relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines.”

has the effect of giving said defeated candidate the legal right to contest judicially the election of the President-elect
of Vice-President-elect and to demand a recount of the votes case for the office involved in the litigation, as well as to secure
a judgment declaring that he is the one elected president or vice-president, as the case may be, and that, as such, he is
entitled to assume the duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal “shall
be composed of the Chief Justice and the other ten Members of the Supreme Court,” said legislation has conferred upon such
Court an additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the Supreme Court
the functions of a Presidential Electoral Tribunal. The result of the enactment may be likened to the fact that courts of first
instance perform the functions of such ordinary courts of first instance, those of court of land registration, those of probate
courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the situation obtaining when the
municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number of cases which were
previously within the exclusive jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one, although
the functions may be distinctand, even, separate. Thus the powers of a court of first instance, in the exercise of its
jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate from, those of the same court acting as
a court of land registration or a probate court, or as a court of juvenile and domestic relations. So too, the authority of the
municipal court of a provincial capital, when acting as such municipal court, is, territorially more limited than that of the same
court when hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance. In other
words, there is only one court, although it may perform the functions pertaining to several types of courts, each having some
characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original jurisdiction, as
well as with appellate jurisdiction, in consequence of which they are both trial courts and, appellate courts, without detracting
from the fact that there is only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with
authority to discharge said dual functions. A court of first instance, when performing the functions of a probate court or a
court of land registration, or a court of juvenile and domestic relations, although with powers less broad than those of a court
of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the
Presidential Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the functions peculiar to
said Tribunal aremore limited in scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the
enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment vested by the
Constitution in the President. It merely connotes the imposition of additional duties upon the Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it has functions
peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of Section 4, Article VII of the
Constitution, and it faithfully complies – not unlawfully defies – the constitutional directive. The adoption of a separate seal,
as well as the change in the nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the Tribunal’s functions as a special
electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of Section 12, Article VIII
of the Constitution, we point out that the issue in Buac v. COMELEC[43] involved the characterization of the enforcement and
administration of a law relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on
Elections. However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that “contests involving the
President and the Vice-President fall within the exclusive original jurisdiction of the PET, also in the exercise of quasi-judicial
power.”

The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any
agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the
power “shall be vested in one Supreme Court and in such lower courts as may be established by law.” Consistent with our
presidential system of government, the function of “dealing with the settlement of disputes, controversies or conflicts
involving rights, duties or prerogatives that are legally demandable and enforceable” [44] is apportioned to courts of justice.
With the advent of the 1987 Constitution, judicial power was expanded to include “the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government.”[45] The power was expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests as essentially
an exercise of judicial power.

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested in the
municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial – exclusive and original
jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral Tribunals, which are not,
strictly and literally speaking, courts of law. Although not courts of law, they are, nonetheless, empowered to resolve
election contests which involve, in essence, an exercise of judicial power, because of the explicit constitutional empowerment
found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals)
of the Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions are still
subject to judicial review – via a petition for certiorari filed by the proper party – if there is a showing that the decision was
rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction.[46]

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election
contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral Commission,[47] Justice
Jose P. Laurel enucleated that “it would be inconceivable if the Constitution had not provided for a mechanism by which to
direct the course of government along constitutional channels.” In fact, Angara pointed out that “[t]he Constitution is a
definition of the powers of government.” And yet, at that time, the 1935 Constitution did not contain the expanded definition
of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction with latter’s
exercise of judicial power inherent in all courts,[48] the task of deciding presidential and vice-presidential election contests,
with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to
courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct
line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House Electoral
Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely, the petitioner will be among the
first to acknowledge that this is not so. The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme
Court Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in Section 4, Article VII,
which exempts the Members of the Court, constituting the PET, from the same prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court were designated.
Once again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not separate,
from the judicial department, i.e., the Supreme Court. McCulloch v. State of Maryland[49] proclaimed that “[a] power without
the means to use it, is a nullity.” The vehicle for the exercise of this power, as intended by the Constitution and specifically
mentioned by the Constitutional Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a
microscopic view, like the petitioner’s, should not constrict an absolute and constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we reiterate a word of caution
against the filing of baseless petitions which only clog the Court’s docket. The petition in the instant case belongs to that
classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.
EN BANC

BAYAN MUNA, as represented by Rep. G.R. No. 159618


SATUR OCAMPO, Rep. CRISPIN BELTRAN, and
Rep. LIZA L. MAZA,
Petitioner, Promulgated:
- versus -
February 1, 2011
ALBERTO ROMULO, in his capacity as
Executive Secretary, and BLAS F. OPLE, in his
capacity as Secretary of Foreign Affairs,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

The Case

This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender
Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of
society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this
case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.[2]

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute[3] establishing the International Criminal Court
(ICC) with“the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall
be complementary to the national criminal jurisdictions.”[4] The serious crimes adverted to cover those considered grave
under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.[5]

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its
terms,is “subject to ratification, acceptance or approval” by the signatory states.[6] As of the filing of the instant petition, only
92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of
Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the
USA and the RP.

Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by
then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and
put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines
as “persons” of the RP and US from frivolous and harassment suits that might be brought against them in international
tribunals.[8] It is reflective of the increasing pace of the strategic security and defense partnership between the two
countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.[9]

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, “persons” are current or former Government officials, employees (including
contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country,
for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN
Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US]
will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such
tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of
the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP]
will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such
tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its
intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally
binding agreement under international law; and that, under US law, the said agreement did not require the advice and
consent of the US Senate.[10]

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying
the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioner’s standing to maintain a suit and counter that the Agreement, being in
the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS
OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE
OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they
capriciously abandoned, waived and relinquished our only legitimate recourse through the Rome Statute of the [ICC] to
prosecute and try “persons” as defined in the x x x Agreement, x x x or literally any conduit of American interests, who have
committed crimes of genocide, crimes against humanity, war crimes and the crime of aggression, thereby abdicating
Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the
[DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair
the value of the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome Statute of the
International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President affixed on
the Rome Statute of the International Criminal Court, and if so whether the x x x Agreement is void and unenforceable on this
ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of discretion
amounting to lack or excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS
THATARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL
LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST
TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.[11]

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which
resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and second,
whether or not theAgreement, which has not been submitted to the Senate for concurrence, contravenes and undermines the
Rome Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the issue of petitioner’s
legal standing.
The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of
the Agreementcarries with it constitutional significance and is of paramount importance that justifies its standing. Cited in
this regard is what is usually referred to as the emergency powers cases,[12] in which ordinary citizens and taxpayers were
accorded the personality to question the constitutionality of executive issuances.

Locus standi is “a right of appearance in a court of justice on a given question.”[13] Specifically, it is “a party’s personal
and substantial interest in a case where he has sustained or will sustain direct injury as a result”[14] of the act being challenged,
and “calls for more than just a generalized grievance.”[15] The term “interest” refers to material interest, as distinguished from
one that is merely incidental.[16] The rationale for requiring a party who challenges the validity of a law or international
agreement to allege such a personal stake in the outcome of the controversy is “to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions.”[17]

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are not
brought by parties who have been personally injured by the operation of a law or any other government act, but by concerned
citizens, taxpayers, or voters who actually sue in the public interest.[18] Consequently, in a catena of cases,[19] this Court has
invariably adopted a liberal stance on locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned citizens raising
issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet
certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc.[20] expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been
met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies
the requirement of personal interest.[21]

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or specific requirements
exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and personal. At
the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement did
not go against established national policies, practices, and obligations bearing on the State’s obligation to the community of
nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush
aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of earlier
cases, notably in the old but oft-cited emergency powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of transcendental
importance, we wrote again in Bayan v. Zamora,[24] “The Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.”

Moreover, bearing in mind what the Court said in Tañada v. Angara, “that it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department of the government,”[25] we cannot but
resolve head on the issues raised before us. Indeed, where an action of any branch of government is seriously alleged to have
infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the
judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the propriety of the Agreement pending
the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03
cannot be a valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and
jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part
of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.[26] An exchange of notes
falls “into the category of inter-governmental agreements,”[27] which is an internationally accepted form of international
agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An “exchange of notes” is a record of a routine agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one
signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering
State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the
process of legislative approval.[28]

In another perspective, the terms “exchange of notes” and “executive agreements” have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding through executive action.[29] On the
other hand, executive agreements concluded by the President “sometimes take the form of exchange of notes and at other
times that of more formal documents denominated ‘agreements’ or ‘protocols.’”[30] As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and agreements – whether
denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready
ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement
itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a
legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded
between states in written form and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.”[32] International agreements may be in the form of (1)
treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to
treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.[33]

Under international law, there is no difference between treaties and executive agreements in terms of their binding
effects on the contracting states concerned,[34] as long as the negotiating functionaries have remained within their
powers.[35] Neither, on the domestic sphere, can one be held valid if it violates the Constitution.[36] Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.[37] As has been
observed by US constitutional scholars, a treaty has greater “dignity” than an executive agreement, because its constitutional
efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people; [38] a ratified
treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.[39]

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea
Trading, in which the Court reproduced the following observations made by US legal scholars: “[I]nternational agreements
involving political issues or changes of national policy and those involving international arrangements of a permanent
character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established
national policies and traditions and those involving arrangements of a more or less temporary nature take the form of
executive agreements.” [40]

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-
categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,[41] holding
that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or
an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda[42] principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to
include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic
energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others.[43] Surely, the
enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international
agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded
from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have
been negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized[44] or a treaty-implementing


executive agreement,[45] which necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact that––save for the situation and matters contemplated in
Sec. 25, Art. XVIII of the Constitution[46]––when a treaty is required, the Constitution does not classify any subject, like that
involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined therein to complete the ratification process.

Petitioner’s reliance on Adolfo[47] is misplaced, said case being inapplicable owing to different factual milieus. There,
the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases
Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may not be
used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate. The
presence of a treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the
premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to the
validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the
Senate. The Court has, inEastern Sea Trading,[48] as reiterated in Bayan,[49] given recognition to the obligatory effect of
executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements
covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and is null and void
insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits that
the Agreementwas constituted solely for the purpose of providing individuals or groups of individuals with immunity from the
jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly does not legitimately fall
within the scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements are prevented
from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,[50] 86,[51] 89[52] and
90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the
worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any
agreement—like the non-surrender agreement—that precludes the ICC from exercising its complementary function of acting
when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome Statute,
are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the purpose and object
of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has an
immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners, the
jurisdiction of the ICC is to “be complementary to national criminal jurisdictions [of the signatory states].”[54] Art. 1 of the
Rome Statute pertinently provides:

Article 1

The Court

An International Crimininal Court (“the Court”) is hereby established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that “it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes.” This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1[55] of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20, Rome Statute, which
again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states
that “no person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried
by the [International Criminal] Court with respect to the same conduct x x x.”

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict
between thePhilippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement substantially
impairing the value of the RP’s undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the Rome
Statute ahead of theAgreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the complementary
jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into the Agreement, violated its duty
required by the imperatives of good faith and breached its commitment under the Vienna Convention[57] to refrain from
performing any act tending to impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in
the provisions of theAgreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone
defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking
the surrender of an erring person, should the process require the requested state to perform an act that would violate some
international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98

Cooperation with respect to waiver of immunity


and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is
required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending
State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a
treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would
defeat the object and purpose of a treaty;[58] whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party
for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of
the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented from meeting
their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding
upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that “[i]f the requesting State is a State not Party to this Statute the requested State, if
it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for
surrender from the Court. x x x” In applying the provision, certain undisputed facts should be pointed out: first, the US is
neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between
the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between
States, even when one of the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the
jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit serious
crimes of international concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering
into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to
seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the Philippines’
national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is always the responsibility
and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede
to the jurisdiction of the ICC. Thus, the Philippines may decide to try “persons” of the US, as the term is understood in
the Agreement, under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring
citizens or over US “persons” committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC
over them. As to “persons” of the US whom the Philippines refuses to prosecute, the country would, in effect,
accord discretion to the US to exercise either its national criminal jurisdiction over the “person” concerned or to give its
consent to the referral of the matter to the ICC for trial. In the same breath, theUS must extend the same privilege to
the Philippines with respect to “persons” of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the
things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—to the extent agreed upon—to subjects of
another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo[59]—a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces
Agreement—is apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign State allowed to enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its
provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international agreement,
it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated
from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.[60]

By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing
and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their
state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one
contracting party to grant the same privileges or immunities to the other. On the rationale that the Philippines has adopted
the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.[61] Such waiver does not amount to an unconstitutional diminution or deprivation of
jurisdiction of Philippine courts.[62]

Agreement Not Immoral/Not at Variance


with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at
variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, “leaves criminals immune from responsibility for unimaginable atrocities that
deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x
x.”[63]

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that
the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty
obligations under the Rome Statute, contrary to international law principles.[64]

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by
the Solicitor General, “is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The
agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal
laws and dispense justice fairly and judiciously.”

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and
Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in
the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the
formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC,
without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we
take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming
criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws
and the Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement. And without
specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru the DFA
Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been
discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President for
performing, through respondents, a task conferred the President by the Constitution—the power to enter into international
agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the
sole organ and authority in the external affairs of the country.[65] The Constitution vests in the President the power to enter
into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly entered into without such concurrence. As the President wields vast powers
and influence, her conduct in the external affairs of the nation is, as Bayan would put it, “executive altogether.” The right of
the President to enter into or ratify binding executive agreements has been confirmed by long practice.[66]

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the
Constitution. At the end of the day, the President––by ratifying, thru her deputies, the non-surrender agreement––did
nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may
perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of ratification was
laid to rest inPimentel, Jr. v. Office of the Executive Secretary.[67] As the Court emphasized in said case, the power to ratify a
treaty, the Statute in that instance, rests with the President, subject to the concurrence of the Senate, whose role relative to
the ratification of a treaty is limited merely to concurring in or withholding the ratification. And concomitant with this treaty-
making power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the
latter’s consent to the ratification of the treaty, refuse to ratify it.[68] This prerogative, the Court hastened to add, is the
President’s alone and cannot be encroached upon via a writ of mandamus. Barring intervening events, then,
the Philippines remains to be just a signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the
“Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.” Sec. 17 of
RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x


In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a
crime punishable under this Act if another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable
extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in relation to grave
crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the above-quoted
statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those
persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of
RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2)
surrender the accused to another State if such surrender is “pursuant to the applicable extradition laws and treaties.” But
the Philippines may exercise these options only in cases where “another court or international tribunal is already conducting
the investigation or undertaking the prosecution of such crime;” otherwise, the Philippines must prosecute the crime before
its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851,
thePhilippines has the option to surrender such US national to the international tribunal if it decides not to prosecute
such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the
consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before
the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippines—without the consent of the US—from surrendering to any international tribunal US
nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is
strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippines adopts,
as a national policy, the “generally accepted principles of international law as part of the law of the land,” the Court is
further impressed to perceive the Rome Statute as declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law or custom and for which reason it assumes the status
of an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive
act of the executive branch, can only implement, but cannot amend or repeal, an existing law. The Agreement, so the
argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome
Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is
embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes
of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status
of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is
repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely
reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by
their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute over
high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory
states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide
and other crimes against humanity;[70] (2) provides penal sanctions and criminal liability for their commission;[71] and (3)
establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to
surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not
exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted proviso
clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA
9851. The statutory proviso uses the word “may.” It is settled doctrine in statutory construction that the word “may”
denotes discretion, and cannot be construed as having mandatory effect.[73] Thus, the pertinent second pararagraph of Sec.
17, RA 9851 is simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise
its primary jurisdiction in cases where “another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime,” still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made “to another State pursuant to the applicable extradition laws and
treaties.” The Agreementcan already be considered a treaty following this Court’s decision in Nicolas v. Romulo[74] which
cited Weinberger v. Rossi.[75] InNicolas, We held that “an executive agreement is a ‘treaty’ within the meaning of that word in
international law and constitutes enforceable domestic law vis-à-vis the United States.”[76]

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which
was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued
on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run
counter to Sec. 17 of RA 9851.

The view’s reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions were filed questioning
the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the
Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided
not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the
Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to
be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement.
He stated that “an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws.”[78] Hence,
this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par.
1, Art. 2 of the RP-US Extradition Treaty, “[a]n offense shall be an extraditable offense if it is punishable under the laws in
both Contracting Parties x x x,”[79] and thereby concluding that while the Philippines has criminalized under RA 9851 the acts
defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in the
US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an
international crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early
as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States
Code Annotated (USCA) provides for the criminal offense of “war crimes” which is similar to the war crimes found in both the
Rome Statute and RA 9851, thus:

(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both,
and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances – The circumstances referred to in subsection (a) are that the person committing such war crime
or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as
defined in Section 101 of the Immigration and Nationality Act).
(c) Definition – As used in this Section the term “war crime” means any conduct –
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any
protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs
of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the
context of and in association with an armed conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as
amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to
civilians.[80]

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to
destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such–
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or
similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole
or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).[81]

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the
jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the
Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled “On Trial: The US Military
and the International Criminal Court,” as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value under international law.
Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (2)
international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by
civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not fall
under any of the foregoing enumerated sources. It cannot even be considered as the “teachings of highly qualified publicists.”
A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or “academic
writers.”[82] It has not been shown that the authors[83] of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes
are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis-à-
vis the definitions under US laws:

Rome Statute US Law


Article 6 §1091. Genocide
Genocide
For the purpose of this Statute, (a) Basic Offense – Whoever,
“genocide” means any of the following acts whether in the time of peace or in time of war
committed with intent to destroy, in whole or in and with specific intent to destroy, in whole or in
part, a national, ethnical, racial or religious substantial part, a national, ethnic, racial or
group, as such: religious group as such–
(a) Killing members of the group; (1) kills members of that group;
(b) Causing serious bodily or mental (2) causes serious bodily injury to
harm to members of the group; members of that group;
(c) Deliberately inflicting on the group (3) causes the permanent impairment
conditions of life calculated to bring about its of the mental faculties of members of the group
physical destruction in whole or in part; through drugs, torture, or similar techniques;
(d) Imposing measures intended to (4) subjects the group to conditions of
prevent births within the group; life that are intended to cause the physical
(e) Forcibly transferring children of the destruction of the group in whole or in part;
group to another group. (5) imposes measures intended to
prevent births within the group; or
(6) transfers by force children of the
group to another group;
shall be punished as provided in
subsection (b).
Article 8 (a) Definition – As used in this Section
War Crimes the term “war crime” means any conduct –
2. For the purpose of this Statute, “war (1) Defined as a grave breach in any of
crimes” means: the international conventions signed
(a) Grave breaches of the Geneva at Geneva12 August 1949, or any protocol to
Conventions of 12 August 1949, namely, any of such convention to which the United States is a
the following acts against persons or property party;
protected under the provisions of the relevant (2) Prohibited by Article 23, 25, 27 or
Geneva Convention: x x x[84] 28 of the Annex to the Hague Convention IV,
(b) Other serious violations of the laws Respecting the Laws and Customs of War on
and customs applicable in international armed Land, signed 18 October 1907;
conflict, within the established framework of (3) Which constitutes a grave breach of
international law, namely, any of the following common Article 3 (as defined in subsection
acts: [d][85]) when committed in the context of and in
xxxx association with an armed conflict not of an
(c) In the case of an armed conflict not international character; or
of an international character, serious violations (4) Of a person who, in relation to an
of article 3 common to the four Geneva armed conflict and contrary to the provisions of
Conventions of 12 August 1949, namely, any of the Protocol on Prohibitions or Restrictions on
the following acts committed against persons the Use of Mines, Booby-Traps and Other
taking no active part in the hostilities, including Devices as amended at Geneva on 3 May 1996
members of armed forces who have laid down (Protocol II as amended on 3 May 1996), when
their arms and those placed hors de combat by the United States is a party to such Protocol,
sickness, wounds, detention or any other cause: willfully kills or causes serious injury to
xxxx civilians.[86]
(d) Paragraph 2 (c) applies to armed
conflicts not of an international character and
thus does not apply to situations of internal
disturbances and tensions, such as riots, isolated
and sporadic acts of violence or other acts of a
similar nature.
(e) Other serious violations of the laws
and customs applicable in armed conflicts not of
an international character, within the established
framework of international law, namely, any of
the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as
much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within
the Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were
instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were
consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps
between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing military laws.[87] x x x

The report went on further to say that “[a]ccording to those involved, the elements of crimes laid out in the Rome
Statute have been part of US military doctrine for decades.”[88] Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As
early as 1900, the esteemed Justice Gray in The Paquete Habana[89] case already held international law as part of the law of
the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose,
where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs
and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor,
research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works
are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the
trustworthy evidence of what the law really is.[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The cited
ruling inU.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,[92] only applies to common law and not to
the law of nations or international law.[93] Indeed, the Court in U.S. v. Hudson only considered the question, “whether the
Circuit Courts of theUnited States can exercise a common law jurisdiction in criminal cases.”[94] Stated otherwise, there is no
common law crime in theUS but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including international
crimes, even without any local statute.[95] In fact, years later, US courts would apply international law as a source of criminal
liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin[96] the US Supreme Court
noted that “[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part
of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of
enemy individuals.”[97] It went on further to explain that Congress had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that
branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that
law condemns. An Act of Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of
its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has adopted by reference the
sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders or
offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses which are defined as such by the law of war x x x, and which may
constitutionally be included within that jurisdiction.[98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war
crimes and crimes against humanity have attained the status of customary international law. Some even go so far as to state
that these crimes have attained the status of jus cogens.[99]

Customary international law or international custom is a source of international law as stated in the Statute of the
ICJ.[100] It is defined as the “general and consistent practice of states recognized and followed by them from a sense of legal
obligation.”[101] In order to establish the customary status of a particular norm, two elements must concur: State practice, the
objective element; andopinio juris sive necessitates, the subjective element.[102]
State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.[103] It is
demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.[104] While, opinio juris, the psychological element, requires that the state practice or norm “be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”[105]

“The term ‘jus cogens’ means the ‘compelling law.’”[106] Corollary, “a jus cogens norm holds the highest hierarchical
position among all other customary norms and principles.”[107] As a result, jus cogens norms are deemed “peremptory and
non-derogable.”[108] When applied to international crimes, “jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from them, even by agreement.”[109]

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., “any state may exercise jurisdiction over
an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for
jurisdiction exists.”[110] “The rationale behind this principle is that the crime committed is so egregious that it is considered to
be committed against all members of the international community”[111] and thus granting every State jurisdiction over the
crime.[112]

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine
of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute
is notdeclaratory of customary international law.

The first element of customary international law, i.e., “established, widespread, and consistent practice on the part of
States,”[113]
does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010,
only 114[114] States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1,
2002. The fact that 114 States out of a total of 194[115] countries in the world, or roughly 58.76%, have ratified the Rome
Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary
law and should be deemed as obligatory international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by
the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8)
years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the
Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means “a general and consistent practice of states followed by them from a
sense of legal obligation [opinio juris] x x x.” This statement contains the two basic elements of custom: the material factor,
that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This includes several
elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the generality of the
practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine why states behave
the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as
a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in
the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular
international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be
deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are
actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it.[117] Like the first element, the second
element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as
evidenced by it requiring State consent.[118] Even further, the Rome Statute specifically and unequivocally requires that:
“This Statute is subjectto ratification, acceptance or approval by signatory States.”[119] These clearly negate the argument that
such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The
power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v.
Senate Committee on Accountability of Public Officers and Investigations, “[t]he power to enter into an executive agreement is
in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of
the Legislature has traditionally been recognized in Philippine jurisprudence.”[120] The rationale behind this principle is the
inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus,
absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought
to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.
EN BANC

MAGDALO PARA SA PAGBABAGO, G.R. No. 190793


Petitioner,
Promulgated:
- versus - June 19, 2012

COMMISSION ON ELECTIONS,
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

SERENO, J.:
Before this Court is a Petition for Certiorari pursuant to Rule 37, Section 1 of the Commission of Elections (COMELEC)
Rules of Procedure,[1] in relation to Rules 64 and 65 of the Rules of Court, assailing the Resolutions dated 26 October 2009 and
4 January 2010 issued by the COMELEC in SPP Case No. 09-073 (PP).[2]
On 2 July 2009, Petitioner Magdalo sa Pagbabago (MAGDALO) filed its Petition for Registration with the COMELEC,
seeking its registration and/or accreditation as a regional political party based in the National Capital Region (NCR) for
participation in the 10 May 2010 National and Local Elections.[3] In the Petition, MAGDALO was represented by its
Chairperson, Senator Antonio F. Trillanes IV, and its Secretary General, Francisco Ashley L. Acedillo (Acedillo).[4] The Petition
was docketed as SPP No. 09-073 (PP) and raffled to the Second Division of the COMELEC (COMELEC–Second Division).[5]
In its Order dated 24 August 2009, the COMELEC–Second Division directed MAGDALO to cause the publication of the
Petition for Registration and the said Order in three daily newspapers of general circulation, and set the hearing thereof on 3
September 2009.[6] In compliance therewith, MAGDALO caused the publication of both documents in HATAW! No. 1 sa
Balita,Saksi sa Balita and BOMBA BALITA (Saksi sa Katotohanan).[7]
On 3 September 2009, a hearing was conducted in which MAGDALO (a) established its compliance with the
jurisdictional requirements; (b) presented Acedillo as its witness; and (c) marked its documentary evidence in support
of its Petition for Registration. The following day, MAGDALO filed its Formal Offer of Evidence.[8]
On 26 October 2009, the COMELEC–Second Division issued its Resolution denying the Petition for Registration filed by
MAGDALO.[9] The relevant portions of the assailed Resolution read:
Magdalo Para sa Pagbabago should be refused registration in accordance with Art. IX-C, Section 2(5) of the
Constitution. It is common knowledge that the party’s organizer and Chairman, Senator Antonio F. Trillanes IV, and some
members participated in the take-over of the
Oakwood Premier Apartments in Ayala Center, Makati City on July 27, 2003, wherein several innocent civilian personnel were
held hostage. This and the fact that they were in full battle gear at the time of the mutiny clearly show their purpose in
employing violence and using unlawful means to achieve their goals in the process defying the laws of organized societies. x
xx

xxx xxx xxx

WHEREFORE, premises considered, this Petition is hereby DENIED.

SO ORDERED.[10] (Emphasis supplied.)


On 3 November 2009, MAGDALO filed a Motion for Reconsideration, which was elevated to the COMELEC En Banc for
resolution.[11]
Meanwhile, on 27 November 2009, MAGDALO filed a Manifestation of Intent to Participate in the Party-List System of
Representation in the 10 May 2010 Elections (Manifestation of Intent), in which it stated that its membership includes
“[f]ormer members of the Armed Forces of the Philippines (AFP), Anti-Corruption Advocates, Reform-minded
citizens.”[12] Thereafter, on 30 November 2009, it filed its Amended Manifestation, which bore the following footnote: [13]
With all due respect to the Honorable Commission, the MAGDALO PARA SA PAGBABAGO (“MAGDALO”) manifests
that the instant MANIFESTATION is being filed ex abutanti (sic) cautelam (out of the abundance of caution) only and subject
to the outcome of the resolution of the Motion for Reconsideration filed by Magdalo in SPP No. 09-073 (PP) from the
Resolution dated 26 October 2009 of the Second Division of the Honorable Commission denying its Petition for
Registration/Accreditation as a Political Party based in the National Capital Region [NCR], which motion is still pending the (sic)
Honorable Commission En Banc. It is not in any way intended to preempt the ruling of the Honorable Commission but merely
to preserve the possibility of pursuing the Party’s participation in the Party-List System of Representation in the eventuality
that their Petition is approved.
Thereafter, MAGDALO filed a Manifestation and Motion for Early Resolution dated 23 December 2009, in which it
clarified its intention to participate in the 10 May 2010 National and Local Elections as a party-list group.[14]
In its assailed Resolution dated 4 January 2010, the COMELEC En Banc denied the Motion for Reconsideration filed by
MAGDALO.[15]
In the instant Petition, MAGDALO argues that (a) the COMELEC Resolutions were not based on the record or evidence
presented; (b) the Resolutions preempted the decision of the trial court in Criminal Case No. 03-2784, in which several
members of the military are being tried for their involvement in the siege of the Oakwood Premier Apartments (Oakwood);
and (c) it has expressly renounced the use of force, violence and other forms of unlawful means to achieve its goals. Thus,
MAGDALO prays for this Court to: (a) reverse and set aside the 26 October 2009 and 4 January 2010 COMELEC Resolutions; (b)
grant its Petition for Registration; and (c) direct the COMELEC to issue a Certificate of Registration.[16] The Petition likewise
includes a prayer for the issuance of a Temporary Restraining Order (TRO), Writ of Preliminary Mandatory Injunction and/or
Injunctive Relief to direct the COMELEC to allow MAGDALO to participate in the 10 May 2010 National and Local
Elections.[17] However, this Court denied the issuance of a TRO in its Resolution dated 2 February 2010.[18]
To support the grant of reliefs prayed for, MAGDALO puts forward the following arguments:
The findings of the assailed resolutions on the basis of which the Petition was denied are based on pure speculation.
The Resolutions speculated as to the alleged motives and/or intentions of the founders of petitioner Magdalo, which claims
are not based on evidence but on mere conjecture and pure baseless presuppositions;

The assailed Resolutions effectively preempted the court trying the case. The subject Resolutions unfairly jumped to
the conclusion that the founders of the Magdalo “committed mutiny”, “held innocent civilian personnel as hostage”,
“employed violence” and “use[d] unlawful means” and “in the process defied the laws of organized society” purportedly during
the Oakwood incident when even the court trying their case, [Regional Trial Court, National Capital Judicial Region, Makati
City], Branch 148, has not yet decided the case against them;

– and –

The Resolution violates the constitutional presumption of innocence in favor of founders of the Magdalo and their
basic right of to [sic] due process of law.[19]
On the other hand, the COMELEC asserts that it had the power to ascertain the eligibility of MAGDALO for registration
and accreditation as a political party.[20] It contends that this determination, as well as that of assessing whether MAGDALO
advocates the use of force, would entail the evaluation of evidence, which cannot be reviewed by this Court in a petition for
certiorari.[21]
However, MAGDALO maintains that although it concedes that the COMELEC has the authority to assess whether
parties applying for registration possess all the qualifications and none of the disqualifications under the applicable law, the
latter nevertheless committed grave abuse of discretion in basing its determination on pure conjectures instead of on the
evidence on record.[22]
Preliminary to the examination of the substantive issues, it must be discussed whether this case has been rendered
moot and academic by the conduct of the 10 May 2010 National and Local Elections. Although the subject Petition for
Registration filed by MAGDALO was intended for the elections on even date, it specifically asked for accreditation as a regional
political party for purposes of subsequent elections.[23]
Moreover, even assuming that the registration was only for the 10 May 2010 National and Local Elections, this case
nevertheless comes under the exceptions to the rules on mootness, as explained in David v. Macapagal-Arroyo:[24]
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness.

xxx xxx xxx

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is involved; third, when [the] constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review.[25] (Emphasis supplied.)
The second and fourth exceptions are clearly present in the case at bar. The instant action brings to the fore matters
of public concern, as it challenges the very notion of the use of violence or unlawful means as a ground for disqualification
from party registration. Moreover, considering the expressed intention of MAGDALO to join subsequent elections, as well as
the occurrence of supervening events pertinent to the case at bar, it remains prudent to examine the issues raised and resolve
the arising legal questions once and for all.
Having established that this Court can exercise its power of judicial review, the issue for resolution is whether the
COMELEC gravely abused its discretion when it denied the Petition for Registration filed by MAGDALO on the ground that the
latter seeks to achieve its goals through violent or unlawful means. This Court rules in the negative, but without prejudice to
MAGDALO’s filing anew of a Petition for Registration.
The COMELEC has a constitutional and statutory mandate to ascertain the eligibility of parties and organizations to
participate in electoral contests. The relevant portions of the 1987 Constitution read:
ARTICLE VI – LEGISLATIVE DEPARTMENT

xxx xxx xxx

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

xxx xxx xxx


ARTICLE IX – CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections

xxx xxx xxx

Section 2. The Commission on Elections shall exercise the following powers and functions:

xxx xxx xxx

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign
government shall likewise be refused registration. x x x. (Emphasis supplied.)
Echoing these constitutional provisions, Batas Pambansa Bilang 881 (BP 881), otherwise known as the Omnibus
Election Code, states:
Sec. 60. Political party. – “Political party” or “party,” when used in this Act, means an organized group of persons
pursuing the same ideology, political ideals or platforms of government and includes its branches and divisions. To acquire
juridical personality, qualify it for subsequent accreditation, and to entitle it to the rights and privileges herein granted to
political parties, a political party shall first be duly registered with the Commission. Any registered political party that, singly
or in coalition with others, fails to obtain at least ten percent of the votes cast in the constituency in which it nominated and
supported a candidate or candidates in the election next following its registration shall, after notice and hearing, be deemed
to have forfeited such status as a registered political party in such constituency.

Sec. 61. Registration. – Any organized group of persons seeking registration as a national or regional political party
may file with the Commission a verified petition attaching thereto its constitution and by-laws, platforms or program of
government and such other relevant information as may be required by the Commission. The Commission shall after due
notice and hearing, resolve the petition within ten days from the date it is submitted for decision. No religious sect shall be
registered as a political party and no political party which seeks to achieve its goal through violence shall be entitled to
accreditation. (Emphasis supplied.)
On the other hand, Republic Act No. 7941, otherwise known as the Party-List System Act, reads in part:
Section 2. Declaration of policy. The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national, regional and sectoral
parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to
the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the
House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order
to attain the broadcast possible representation of party, sectoral or group interests in the House of Representatives by
enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.

Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election
of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions
thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may
participate independently provided the coalition of which they form part does not participate in the party-list system.
(Emphasis supplied.)
Thus, to join electoral contests, a party or organization must undergo the two-step process of registration and
accreditation, as this Court explained in Liberal Party v. COMELEC:[26]
x x x Registration is the act that bestows juridical personality for purposes of our election laws; accreditation, on the
other hand, relates to
the privileged participation that our election laws grant to qualified registered parties.

xxx xxx xxx

x x x Accreditation can only be granted to a registered political party, organization or coalition; stated otherwise, a
registration must first take place before a request for accreditation can be made. Once registration has been carried out,
accreditation is the next natural step to follow.[27] (Emphasis supplied.)
Considering the constitutional and statutory authority of the COMELEC to ascertain the eligibility of parties or
organizations seeking registration and accreditation, the pertinent question now is whether its exercise of this discretion was
so capricious or whimsical as to amount to lack of jurisdiction. In view of the facts available to the COMELEC at the time it
issued its assailed Resolutions, this Court rules that respondent did not commit grave abuse of discretion.
A. The COMELEC did not commit grave abuse of discretion in taking judicial notice of the Oakwood incident.
MAGDALO contends that it was grave abuse of discretion for the COMELEC to have denied the Petition for
Registration not on the basis of facts or evidence on record, but on mere speculation and conjectures.[28] This argument
cannot be given any merit.
Under the Rules of Court, judicial notice may be taken of matters that are of “public knowledge, or are capable of
unquestionable demonstration.”[29] Further, Executive Order No. 292, otherwise known as the Revised Administrative Code,
specifically empowers administrative agencies to admit and give probative value to evidence commonly acceptable by
reasonably prudent men, and to take notice of judicially cognizable facts.[30] Thus, in Saludo v. American Express,[31] this Court
explained as follows:
The concept of “facts of common knowledge” in the context of judicial notice has been explained as those facts that
are “so commonly known in the community as to make it unprofitable to require proof, and so certainly known x x x as to
make it indisputable among reasonable men.”[32]
This Court has, in a string of cases, already taken judicial notice of the factual circumstances surrounding the
Oakwood standoff. [33] The incident involved over 300 heavily armed military officers and enlisted men – led by the founding
members of MAGDALO – who surreptitiously took over Oakwood in the wee hours of 27 July 2003. They disarmed the security
guards and planted explosive devices around the building and within its vicinity. They aired their grievances against the
administration of former President Gloria Macapagal-Arroyo (former President Arroyo), withdrew their support from the
government, and called for her resignation, as well as that of her cabinet members and of the top officials of the Philippine
National Police (PNP) and the Armed Forces of the Philippines (AFP). After the ensuing negotiations for these military agents
to lay down their weapons, defuse the explosives and return to the barracks, the debacle came to a close at 11:00 p.m. on the
same day.[34] That the Oakwood incident was widely known and extensively covered by the media made it a proper subject of
judicial notice. Thus, the COMELEC did not commit grave abuse of discretion when it treated these facts as public
knowledge,[35] and took cognizance thereof without requiring the introduction and reception of evidence thereon.
B. The COMELEC did not commit grave abuse of discretion in finding that MAGDALO uses violence or
unlawful means to achieve its goals.
In the instant Petition, MAGDALO claims that it did not resort to violence when it took over Oakwood because (a) no
one, either civilian or military, was held hostage; (b) its members immediately evacuated the guests and staff of the hotel; and
(c) not a single shot was fired during the incident.[36] These arguments present a very narrow interpretation of the concepts of
violence and unlawful means, and downplays the threat of violence displayed by the soldiers during the takeover.
Under Article IX-C, Section 2(5) of the 1987 Constitution, parties, organizations and coalitions that “seek to achieve
their goals through violence or unlawful means” shall be denied registration. This disqualification is reiterated in Section 61 of
B.P. 881, which provides that “no political party which seeks to achieve its goal through violence shall be entitled to
accreditation.”
Violence is the unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or
[37]
fury. It also denotes physical force unlawfully exercised; abuse of force; that force which is employed against common right,
against the laws, and against public liberty.[38] On the other hand, an unlawful act is one that is contrary to law and need not
be a crime, considering that the latter must still unite with evil intent for it to exist.[39]
In the present case, the Oakwood incident was one that was attended with violence. As publicly announced by the
leaders of MAGDALO during the siege, their objectives were to express their dissatisfaction with the administration of former
President Arroyo, and to divulge the alleged corruption in the military and the supposed sale of arms to enemies of the
state.[40] Ultimately, they wanted the President, her cabinet members, and the top officials of the AFP and the PNP to
resign.[41] To achieve these goals, MAGDALO opted to seize a hotel occupied by civilians, march in the premises in full battle
gear with ammunitions, and plant explosives in the building. These brash methods by which MAGDALO opted to ventilate the
grievances of its members and withdraw its support from the government constituted clear acts of violence.
The assertions of MAGDALO that no one was held hostage or that no shot was fired[42] do not mask its use of
impelling force to take over and sustain the occupation of Oakwood. Neither does its express renunciation of the use of force,
violence and other unlawful means in its Petition for Registration and Program of Government[43] obscure the actual
circumstances surrounding the encounter. The deliberate brandishing of military power, which included the show of force, use
of full battle gear, display of ammunitions, and use of explosive devices, engendered an alarming security risk to the public. At
the very least, the totality of these brazen acts fomented a threat of violence that preyed on the vulnerability of civilians. The
COMELEC did not, therefore, commit grave abuse of discretion when it treated the Oakwood standoff as a manifestation of
the predilection of MAGDALO for resorting to violence or threats thereof in order to achieve its objectives.
C. The finding that MAGDALO seeks to achieve its goals through violence or unlawful means did not operate
as a prejudgment of Criminal Case No. 03-2784.
MAGDALO contends that the finding of the COMELEC that the former pursues its goals through violence or unlawful
means was tantamount to an unwarranted verdict of guilt for several crimes, which in effect, preempted the proceedings in
Criminal Case No. 03-2784 and violated the right to presumption of innocence.[44] This argument cannot be sustained.
The power vested by Article IX-C, Section 2(5) of the Constitution and Section 61 of BP 881 in the COMELEC to register
political parties and ascertain the eligibility of groups to participate in the elections is purely administrative in character.[45] In
exercising this authority, the COMELEC only has to assess whether the party or organization seeking registration or
accreditation pursues its goals by employing acts considered as violent or unlawful, and not necessarily criminal in nature.
Although this process does not entail any determination of administrative liability, as it is only limited to the evaluation of
qualifications for registration, the ruling of this Court in Quarto v. Marcelo[46] is nonetheless analogously applicable:
An administrative case is altogether different from a criminal case, such that the disposition in the former does not
necessarily result in the same disposition for the latter, although both may arise from the same set of facts. The most that we
can read from the finding of liability is that the respondents have been found to be administratively guilty by substantial
evidence – the quantum of proof required in an administrative proceeding. The requirement of the Revised Rules of Criminal
Procedure…that the proposed witness should not appear to be the “most guilty” is obviously in line with the character and
purpose of a criminal proceeding, and the much stricter standards observed in these cases.They are standards entirely
different from those applicable in administrative proceedings.[47] (Emphasis supplied.)
Further, there is a well-established distinction between the quantum of proof required for administrative proceedings
and that for criminal actions, to wit:
As an administrative proceeding, the evidentiary bar against which the evidence at hand is measured is not the
highest quantum of proof beyond reasonable doubt, requiring moral certainty to support affirmative findings. Instead, the
lowest standard of substantial evidence, that is, such relevant evidence as a reasonable mind will accept as adequate to
support a conclusion, applies.[48] (Emphasis omitted.)
In the case at bar, the challenged COMELEC Resolutions were issued pursuant to its administrative power to evaluate
the eligibility of groups to join the elections as political parties, for which the evidentiary threshold of substantial evidence is
applicable. In finding that MAGDALO resorts to violence or unlawful acts to fulfil its organizational objectives, the COMELEC
did not render an assessment as to whether the members of petitioner committed crimes, as respondent was not required to
make that determination in the first place. Its evaluation was limited only to examining whether MAGDALO possessed all the
necessary qualifications and none of disqualifications for registration as a political party. In arriving at its assailed ruling, the
COMELEC only had to assess whether there was substantial evidence adequate to support this conclusion.
On the other hand, Criminal Case No. 03-2784 is a criminal action charging members of MAGDALO with coup
d’étatfollowing the events that took place during the Oakwood siege. As it is a criminal case, proof beyond reasonable doubt
is necessary. Therefore, although the registration case before the COMELEC and the criminal case before the trial court may
find bases in the same factual circumstances, they nevertheless involve entirely separate and distinct issues requiring different
evidentiary thresholds. The COMELEC correctly ruled thus:
It is at once apparent that that [sic] the proceedings in and the consequent findings of the Commission (Second
Division) in the subject
resolution did not pre-empt the trial and decision of the court hearing the cases of the Magdalo members. These are two
different processes. The proceedings in the Commission is [sic] a petition for registration of Magdalo as a political party and
the Commission is empowered to ascertain facts and circumstances relative to this case. It is not criminal in nature unlike the
court case of the Magdalo founders. Thus, the Second Division did not violate the right of the Magdalo founders to be
presumed innocent until proven guilty when it promulgated the questioned resolution. There is likewise no violation of due
process. Accreditation as a political party is not a right but only a privilege given to groups who have qualified and met the
requirements provided by law.[49]
It is unmistakable from the above reasons that the ruling of the COMELEC denying the Petition for Registration filed
by MAGDALO has not, as respondent could not have, preempted Criminal Case No. 03-2784 or violated the right of
petitioner’s members to a presumption of innocence.
Subsequent Grant of Amnesty to the Military Personnel involved in the Oakwood standoff
It must be clarified that the foregoing discussion finding the absence of grave abuse of discretion on the part of the
COMELEC is based on the facts available to it at the time it issued the assailed 26 October 2009 and 4 January 2010
Resolutions. It is crucial to make this qualification, as this Court recognizes the occurrence of supervening events that could
have altered the COMELEC’s evaluation of the Petition for Registration filed by MAGDALO. The assessment of the COMELEC
could have changed, had these incidents taken place before the opportunity to deny the Petition arose. In the same manner
that this Court takes cognizance of the facts surrounding the Oakwood incident, it also takes judicial notice of the grant of
amnesty in favor of the soldiers who figured in this standoff.
This Court, in People v. Patriarca,[50] explained the concept of amnesty, to wit:
Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the
forgiveness which one sovereign grants to the subjects of another, who have offended, by some breach, the law of
nations. Amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and obliterates
the offense with which he is charged, that the person released by amnesty stands before the law precisely as though he
had committed no offense.

xxx xxx xxx

In the case of People vs. Casido, the difference between pardon and amnesty is given:

“Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the
person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, is a public act of which the courts should take judicial notice. x x x”[51] (Emphasis supplied.)
Pursuant to Article VII, Section 19 of the Constitution,[52] President Benigno S. Aquino III issued on 24 November 2010
Proclamation No. 75,[53] which reads in part:
GRANTING AMNESTY TO ACTIVE AND FORMER PERSONNEL OF THE ARMED FORCES OF THE PHILIPPINES, PHILIPPINE
NATIONAL POLICE AND THEIR SUPPORTERS WHO MAY HAVE COMMITTED CRIMES PUNISHABLE UNDER THE REVISED PENAL
CODE, THE ARTICLES OF WAR AND OTHER LAWS IN CONNECTION WITH THE OAKWOOD MUTINY, THE MARINES STAND-OFF
AND THE PENINSULA MANILA HOTEL INCIDENT

WHEREAS, it is recognized that certain active and former personnel of the Armed Forces of the Philippines (AFP), the
Philippine National Police (PNP) and their supporters have or may have committed crimes punishable under the Revised Penal
Code, the Articles of War and other laws in connection with, in relation or incident to the July 27, 2003 Oakwood Mutiny, the
February 2006 Marines Stand-Off and the November 29, 2007 Manila Pen Incident;

WHEREAS, there is a clamor from certain sectors of society urging the President to extend amnesty to said AFP
personnel and their supporters;

WHEREAS, Section 19, Article VII of the Constitution expressly vests the President the power to grant amnesty;
WHEREAS, the grant of amnesty in favor of the said active and former personnel of the AFP and PNP and their
supporters will promote an atmosphere conducive to the attainment of a just, comprehensive and enduring peace and is in
line with the Government’s peace and reconciliation initiatives;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the powers vested in me by
Section 19, Article VII of the Philippine Constitution, do hereby DECLARE and PROCLAIM:

SECTION 1. Grant of Amnesty. – Amnesty is hereby granted to all active and former personnel of the AFP and PNP as
well as their supporters who have or may have committed crimes punishable under the Revised Penal Code, the Articles of
War or other laws in connection with, in relation or incident to the July 27, 2003 Oakwood Mutiny, the February 2006
Marines Stand-Off and the November 29, 2007 Manila Peninsula Incident who shall apply therefor; Provided that amnesty
shall not cover rape, acts of torture, crimes against chastity and other crimes committed for personal ends.

xxx xxx xxx

SECTION 4. Effects. – (a) Amnesty pursuant to this proclamation shall extinguish any criminal liability for acts
committed in connection, incident or related to the July 27, 2003 Oakwood Mutiny, the February 2006 Marines Stand-Off
and the November 29, 2007 Peninsula Manila Hotel Incident without prejudice to the grantee’s civil liability for injuries or
damages caused to private persons.

(b) Except as provided below, the grant of amnesty shall effect the restoration of civil and political rights or
entitlement of grantees that may have been suspended, lost or adversely affected by virtue of any executive,
administrative or criminal action or proceedings against the grantee in connection with the subject incidents, including
criminal conviction or (sic) any form, if any.

(c) All enlisted personnel of the Armed Forces of the Philippines with the rank of up to Technical Sergeant and
personnel of the PNP with the rank of up to Senior Police Officer 3, whose applications for amnesty would be approved shall
be entitled to reintegration or reinstatement, subject to existing laws and regulations. However, they shall not be entitled to
back pay during the time they have been discharged or suspended from service or unable to perform their military or police
duties.

(d) Commissioned and Non-commissioned officers of the AFP with the rank of Master Sergeant and personnel of the
PNP with the rank of at least Senior Police Officer 4 whose application for amnesty will be approved shall not be entitled to
remain in the service, reintegration or reinstatement into the service nor back pay.

(e) All AFP and PNP personnel granted amnesty who are not reintegrated or reinstated shall be entitled to retirement
and separation benefits, if qualified under existing laws and regulation, as of the time [of] separation, unless they have
forfeited such retirement benefits for reasons other than the acts covered by this Proclamation. Those reintegrated or
reinstated shall be entitled to their retirement and separation benefit[s] upon their actual retirement. (Emphasis supplied.)
Thereafter, the House of Representatives and the Senate adopted Concurrent Resolution No. 4 on 13 and 14
December 2010, respectively.[54] Relevant portions of the Resolution partly read:
CONCURRENT RESOLUTION CONCURRING WITH PROCLAMATION NO. 75 OF THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES DATED 24 NOVEMBER 2010 ENTITLED “GRANTING AMNESTY TO ACTIVE AND FORMER PERSONNEL OF THE
ARMED FORCES OF THE PHILIPPINES, PHILIPPINE NATIONAL POLICE AND THEIR SUPPORTERS WHO MAY HAVE COMMITTED
CRIMES PUNISHABLE UNDER THE REVISED PENAL CODE, THE ARTICLES OF WAR AND OTHER LAWS IN CONNECTION WITH THE
OAKWOOD MUTINY, THE MARINES STAND-OFF AND THE PENINSULA MANILA HOTEL INCIDENT
WHEREAS, Section 19, Article VII of the Constitution provides that the President shall have the power to grant
amnesty with the concurrence of a majority of all the Members of Congress;

xxx xxx xxx

WHEREAS, both Houses of Congress share the view of the President that in order to promote an atmosphere
conducive to the attainment of a just, comprehensive and enduing peace and in line with the Government’s peace and
reconciliation initiatives, there is a need to declare amnesty in favor of the said active and former personnel of the AFP and
PNP and their supporters;

WHEREAS, it is the sense of both House of Congress that it is imperative that an amnesty partaking the nature
proclaimed by His Excellency, the President of the Philippines, is necessary for the general interest of the Philippines; xxx
(Emphasis supplied.)
In light of the foregoing, to still sustain the finding, based on the participation of its members in the Oakwood
incident, that MAGDALO employs violence or other harmful means would be inconsistent with the legal effects of amnesty.
Likewise, it would not be in accord with the express intention of both the Executive and the Legislative branches, in granting
the said amnesty, to promote an atmosphere conducive to attaining peace in line with the government’s peace and
reconciliation initiatives.
Nevertheless, this Court is not unmindful of the apprehensions of the COMELEC as regards the use of violence. Thus,
should MAGDALO decide to file another Petition for Registration, its officers must individually execute affidavits renouncing
the use of violence or other harmful means to achieve the objectives of their organization. Further, it must also be
underscored that the membership of MAGDALO cannot include military officers and/or enlisted personnel in active service,
as this act would run counter to the express provisions of the Constitution:
ARTICLE XVI – GENERAL PROVISIONS

Section 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this
Constitution.

xxx xxx xxx

(3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime
concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage directly or indirectly in any partisan political activity, except to vote.

(4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity
to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries.
(Emphasis supplied.)
This Court finds that the COMELEC did not commit grave abuse of discretion in denying the Petition for Registration
filed by MAGDALO. However, in view of the subsequent amnesty granted in favor of the members of MAGDALO, the events
that transpired during the Oakwood incident can no longer be interpreted as acts of violence in the context of the
disqualifications from party registration.
WHEREFORE, the instant Petition is DISMISSED. The 26 October 2009 and 4 January 2010 Resolutions of the
Commission on Elections are hereby AFFIRMED, without prejudice to the filing anew of a Petition for Registration by MAGDALO.

SO ORDERED.
ARTURO M. DE CASTRO, 191002
Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO,
Respondents.

DECISION

BERSAMIN, J.:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May
the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from making appointments within two months immediately before
the next presidential elections and up to the end of his term, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1),
Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled
within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar
Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno,
and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article
VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC?

Precís of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002 [1] and G.R. No.
191149[2] as special civil actions for certiorari and mandamus, praying that the JBC be compelled to submit to the incumbent
President the list of at least three nominees for the position of the next Chief Justice.

In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting
its search, selection and nomination proceedings for the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution Association (PHILCONSA) wants
the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement
on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the
Executive Department.

In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a
ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary.

In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners
Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to
the President for appointment during the period provided for in Section 15, Article VII.

All the petitions now before the Court pose as the principal legal question whether the incumbent President can
appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental
importance to the Nation, because the appointment of the Chief Justice is any President’s most important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively(Valenzuela),[7] by which the Court held that Section 15, Article VII prohibited the exercise by the President of the
power to appoint to judicial positions during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries – one
side holds that the incumbent President is prohibited from making appointments within two months immediately before the
coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that
the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount
national interest justifies the appointment of a Chief Justice during the election ban – has impelled the JBC to defer the
decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor.[8] He
opines that the JBC is thereby arrogating unto itself “the judicial function that is not conferred upon it by the Constitution,”
which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to “finally resolve
constitutional questions, which is the power vested only in the Supreme Court under the Constitution.” As such, he contends
that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that
a “final and definitive resolution of the constitutional questions raised above would diffuse (sic) the tension in the legal
community that would go a long way to keep and maintain stability in the judiciary and the political system.”[9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or
excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection
process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of
Chief Justice is the Supreme Court itself, the President’s authority being limited to the appointment of the Members of the
Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme
Court.[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that “unorthodox and exceptional circumstances
spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs.
4(1), 8(5) and 9, Art. VIII of the Constitution” have bred “a frenzied inflammatory legal debate on the constitutional provisions
mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the
nation and the people,” thereby fashioning “transcendental questions or issues affecting the JBC’s proper exercise of its
“principal function of recommending appointees to the Judiciary” by submitting only to the President (not to the next
President) “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy” from which the
members of the Supreme Court and judges of the lower courts may be appointed.”[11] PHILCONSA further believes and
submits that now is the time to revisit and reviewValenzuela, the “strange and exotic Decision of the Court en banc.”[12]

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC “to immediately transmit to the
President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of
Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution” in the event that the Court
resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the
Constitution.[13]

The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the “JBC has initiated the
process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the
applications to the position,” and “is perilously near completing the nomination process and coming up with a list of nominees
for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010,” which
“only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of
submitting the list, especially if it will be cone within the period of the ban on midnight appointments.”[14]

Antecedents

These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of
Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9,
Article VIII, that“vacancy shall be filled within ninety days from the occurrence thereof” from a “list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy.”

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the
JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,[15] which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position
of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S.
Puno.

It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates;
publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of
candidates; and prepare the shortlist of candidates.

As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws
and jurisprudence, the JBC welcomes and will consider all views on the matter.

18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for
that purpose its announcement dated January 20, 2010,[16] viz:

The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice,
HON. REYNATO S. PUNO.

Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to
the JBC Secretariat xxx:

The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.[17]

Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the
five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C.
Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio
Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25,
2010, respectively.[18]

Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied,
but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted
their nominationswithout conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De
Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio
Morales.[19] Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of
the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the
JBC on February 8, 2010).[20]

The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by
the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office
of the Ombudsman).[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the
following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than
February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate
Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in
the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]

Issues

Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its
rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy
now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the
vacancy occurs upon the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal
quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or
not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court,
the Court addressed this issue now before us as an administrative matter “to avoid any possible polemics concerning the
matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared to the “polemics” that
have now erupted in regard to the current controversy,” and that unless “put to a halt, and this may only be achieved by a
ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice,
may irreparably be impaired.”[23]

Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of
their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent
President can appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and authority to appoint during the election ban the successor of
Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?

G.R. No. 191032

a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?

G.R. No. 191057

a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable
only to positions in the Executive Department?

b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the
Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the
exigencies of public service, thereby justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who
manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be
submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June
30, 2010?

A. M. No. 10-2-5-SC

a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9,
Article VIII of the Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that
for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149

a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-
Arroyo?

G.R. No. 191342

a. Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a
grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnightappointments
two months immediately preceding the next presidential elections until the end of her term?

b. Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice,
constitutionally invalid in view of the JBC’s illegal composition allowing each member from the Senate and the House of
Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the
consolidated petitions, except that filed in G.R. No. 191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the
selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation
of the short list of candidates, “including the interview of the constitutional experts, as may be needed.”[24] It stated:[25]

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in
light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within
ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential
appointments “two (2) months immediately before the next presidential elections and up to the end of his term” and
Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its
decision in these consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can
appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function
under the Constitution to recommend appointees in the Judiciary; (b) the JBC’s function to recommend is a “continuing
process,” which does not begin with each vacancy or end with each nomination, because the goal is “to submit the list of
nominees to Malacañang on the very day the vacancy arises”;[26] the JBC was thus acting within its jurisdiction when it
commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief
Justice to be vacated by Chief Justice Puno;[27] (c) petitioner Soriano’s theory that it is the Supreme Court, not the President,
who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase “members
of the Supreme Court” found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the
exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the
President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list
is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and,
therefore, has no discretion to withhold the list from the President; [29] and (e) a writ ofmandamus cannot issue to compel the
JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include
in or exclude from the list particular individuals, but, on the contrary, the JBC’s determination of who it nominates to the
President is an exercise of a discretionary duty.[30]

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under
Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in
the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution; [31] that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the
framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice
versa;[32] that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily
expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not
written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or
limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political
vicissitudes” and its “insulation from political pressures,”[33] such as stringent qualifications for the positions, the
establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the
appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized
that there might be “the imperative need for an appointment during the period of the ban,” like when the membership of the
Supreme Court should be “so reduced that it will have no quorum, or should the voting on a particular important question
requiring expeditious resolution be divided”;[34] and that Valenzuela also recognized that the filling of vacancies in the
Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the
appointments during the period of the prohibition.[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the
next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is “quite expected”;[36] (b) the Court acts as
the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election,
returns, and qualifications of the President and Vice President and, as such, has “the power to correct manifest errors on the
statement of votes (SOV) and certificates of canvass (COC)”;[37] (c) if history has shown that during ordinary times the Chief
Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution,
there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice
Puno;[38] and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court,
thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the
vacancy in accordance with the constitutional mandate.[39]

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40]

(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of People’s Lawyers (NUPL);

(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter
and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P.
Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary
General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken
Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry
Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the
Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma.
Cristina Angela Guevarra (BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.);
and

(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers
Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip;
Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and
Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castro’s
petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from
making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief
Justice Puno. Hence,mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the
constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the
Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the
President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission
of the list (for all other courts) was not an excuse to violate the constitutional prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence
that Valenzuelarecognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances
warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an
Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist
that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit
and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castro’s fears are unfounded and baseless, being based on a mere possibility, the occurrence of
which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional
and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable
political situation.

ice is imperative for the stability of the judicial system and the political situation in the country when the election-
related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in
the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas
Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence;
that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that
the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the
Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at
the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief
Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has
been repeatedly observed and has become a part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election
offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or
privilege to any government official or employee during the period of 45 days before a regular election; that the provision
covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President;
that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the
period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next
Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a
vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castro’s prayer to compel the submission of nominees by the JBC to the incumbent
President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission
of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent
President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is
no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of
appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the
two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments
in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15
does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Soriano’s contention that the power to appoint the Chief Justice is
vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the
Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term “members” was interpreted
in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the
Supreme Court; that PHILCONSA’s prayer that the Court pass a resolution declaring that persons who manifest their interest
as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in
the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights
the lack of merit of PHILCONSA’s petition; that the role of the JBC cannot be separated from the constitutional prohibition on
the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to
the next duly elected President after the period of the constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC – because it is neither a judicial nor a quasi-judicial body – has
no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during
the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations
under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function,
but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article
VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception.

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC’s act of nominating appointees to the Supreme
Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in
submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of
the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in
the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal
basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a
matter of right under law.

The main question presented in all the filings herein – because it involves two seemingly conflicting provisions of the
Constitution – imperatively demands the attention and resolution of this Court, the only authority that can resolve the
question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence,
reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into
the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing President’s
power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of
the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of
screening and nominating qualified persons for appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

Black defines locus standi as “a right of appearance in a court of justice on a given question.”[41] In public or
constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the
ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that
the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:[42]

The question on legal standing is whether such parties have “alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.”[43] Accordingly, it has been held that the interest of a
person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the
law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as
a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the statute or act complained of.[44]

It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct injury test for determining whether
a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute
must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a
result.” Vera was followed in Custodio v. President of the Senate,[46] Manila Race Horse Trainers’ Association v. De la
Fuente,[47] Anti-Chinese League of the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49]

Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived
by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the
approach when the cases had “transcendental importance.” Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51]

In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the issues raised by the
petition due to their “far-reaching implications,” even if the petitioner had no personality to file the suit. The liberal approach
of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.[53]

However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional
executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner
may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates
in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not
surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the
petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why:

Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was
first laid down inBeauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayer’s suit is in a different category from the
plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[56] “In
matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.”
With respect to taxpayer’s suits, Terr v. Jordan[57] held that “the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be denied.”[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right
as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next
Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve “unnecessary, if not, illegal disbursement of public funds.”[59]

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of
defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court
has recognized its legal standing to file cases on constitutional issues in several cases.[60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged
in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim
Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern
Luzon andEastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the
JBC to the President, for “[a]n adjudication of the proper interpretation and application of the constitutional ban on midnight
appointments with regard to respondent JBC’s function in submitting the list of nominees is well within the concern of
petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by
government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of
our democratic institution.” They further allege that, reposed in them as members of the Bar, is a clear legal interest in the
process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person
appointed becomes a member of the body that has constitutional supervision and authority over them and other members of
the legal profession.[61]

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as
to vest them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole,
and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of one’s personal
interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the
successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a
far too great number of vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any
petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the
requirement.[62]

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any
obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging
our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air
Terminals Co., Inc.,[63]we pointed out: “Standing is a peculiar concept in constitutional law because in some cases, suits are not
brought by parties who have been personally injured by the operation of a law or any other government act but by concerned
citizens, taxpayers or voters who actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not
covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions raised.”[64]

Justiciability

Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication,
considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees;
hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved
for submission to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out
that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to
submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castro’s petition rests on an overbroad and vague allegation of
political tension, which is insufficient basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the
President should do, and are not invoking any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in
any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or
associations of lawyers and law students on the issues published in the daily newspapers are “matters of paramount and
transcendental importance to the bench, bar and general public”; that PHILCONSA fails not only to cite any legal duty or allege
any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not
even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should “rule for the
guidance of” the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on
the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the
person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does
not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the
Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by
the JBC, but to declare the state of the law in the absence of an actual case or controversy.

We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is
that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the
next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the
candidates, the preparation of the short list of candidates, and the “interview of constitutional experts, as may be needed.”

A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an
insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after
May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of
the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill
the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the
vacancy.

The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the
JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence
of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the
ground that said list should be submitted instead to the next President; the strong position that the incumbent President is
already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on
May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some
of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the
short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a
merely hypothetical exercise. The resolution of the controversy will surely settle – with finality – the nagging questions that
are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist
from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial
determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional
interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to
intelligently adjudicate the issues.[65] Herein, the facts are not in doubt, for only legal issues remain.

Substantive Merits

I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President
or Acting President shall not make appointments, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that
the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the
Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to
meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government
among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments
(Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political
structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship
speech:

We have in the political part of this Constitution opted for the separation of powers in government because we
believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government.
Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.[66]

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by
the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the
Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the
appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can
only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article
mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of
the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of the President’s or Acting
President’s term does not refer to the Members of the Supreme Court.

Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot be disputed
that theValenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the
confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which
confirmation Valenzuela even expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz:

V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to
have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen.
He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily),
and to this end proposed that any vacancy “must be filled within two months from the date that the vacancy occurs.” His
proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the
size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in
the provision (anent the Court’s membership) of the same mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE
FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.” He later agreed to suggestions to make the period three,
instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately
agreed on a fifteen-member Court.Thus it was that the section fixing the composition of the Supreme Court came to include
a command to fill up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any “vacancy shall be filled within ninety days” (in
the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in
stronger negative language - that “a President or Acting President shall not make appointments…”

The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add
to what is now Section 9 of Article VIII, the following paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL
ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar
Council to the President). Davide stated that his purpose was to provide a “uniform rule” for lower courts. According to him,
the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more time to submit a new one.

On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power “two
months immediately before the next presidential elections up to the end of his term” - was approved without discussion.[68]

However, the reference to the records of the Constitutional Commission did not advance or support the result
in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution,
upon the initiative ofCommissioner Eulogio Lerum, “a command [to the President] to fill up any vacancy therein within 90 days
from its occurrence,” which even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional
Commission on October 8, 1986further show that the filling of a vacancy in the Supreme Court within the 90-day period was
a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection reads: “Any vacancy shall be filled within ninety days
from the occurrence thereof.”

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a
complete complement.[70]

Moreover, the usage in Section 4(1), Article VIII of the word shall – an imperative, operating to impose a duty that
may be enforced[71] – should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make
an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be
defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was
“couched in stronger negative language.” Such interpretation even turned out to be conjectural, in light of the records of the
Constitutional Commission’s deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory
construction:[72]

xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and
reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which
may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed
so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its
entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled.

Consequently, that construction which will leave every word operative will be favored over one which leaves some
word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a
meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute,
they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at
a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent
of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable
conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest
expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then
only where an irreconcilable conflict exists between different sections of the same act, and after all other means of
ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be
said in favor of the rule’s application, largely because of the principle of implied repeal.

In this connection, PHILCONSA’s urging of a revisit and a review of Valenzuela is timely and
appropriate. Valenzuelaarbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article
VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions
had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent of the framers.[73]

Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section
15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be
allowed to last after its false premises have been exposed.[74] It will not do to merely distinguish Valenzuela from these cases,
for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently,
Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to
eliminatemidnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with
in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying
votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months
preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election
Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-called “midnight”
appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President,
President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator
whose duty was to “prepare for the orderly transfer of authority to the incoming President.” Said the Court:

“The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few
hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding
appointments.”

As indicated, the Court recognized that there may well be appointments to important positions which have to be
made even after the proclamation of the new President. Such appointments, so long as they are “few and so spaced as to
afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s
qualifications,” can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which
were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to
contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and
the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the
Presidential election.

On the other hand, the exception in the same Section 15 of Article VII – allowing appointments to be made during the
period of the ban therein provided – is much narrower than that recognized in Aytona. The exception allows only the making
of temporary appointments to executivepositions when continued vacancies will prejudice public service or endanger public
safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the
President's power of appointment, it is this Court’s view that, as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up
of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally
and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be
filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as
earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election
offense.[76]

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not
need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting
the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC
ensured that there would no longer bemidnight appointments to the Judiciary. If midnight appointments in the mold
of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his
administration out of a desire to subvert the policies of the incoming President or for partisanship,[77] the appointments to the
Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC’s prior
processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the
enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the
enactment must necessarily shed considerable light on “the law of the statute,” i.e., the intent; hence, the enactment should
be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather
than to defeat it.[78]

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the
purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the
time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential
with the President could not always be assured of being recommended for the consideration of the President, because they
first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended
to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process
was absent from the Aytona midnightappointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed
by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by
some sectors about the “constitutionality of xxx appointments” to the Court of Appeals in light of the forthcoming presidential
elections. He assured that “on the basis of the (Constitutional) Commission’s records, the election ban had no application to
appointments to the Court of Appeals.”[79] This confirmation was accepted by the JBC, which then submitted to the President
for consideration the nominations for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice
Regalado.Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the
deliberations of the Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during
the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998,
had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional
Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing
powers of the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting
President,[81] and evidently refers only to appointments in the Executive Department. It has no application to appointments in
the Judiciary, becausetemporary or acting appointments can only undermine the independence of the Judiciary due to their
being revocable at will.[82] The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation,
judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments.
Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after
the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement
did not include appointments to the Judiciary.[83]

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the
President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department
renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule
that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the general intent of the whole enactment.[84] It is absurd to assume
that the framers deliberately situated Section 15between Section 14 and Section 16, if they intended Section 15 to
cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the
framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section
4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further
undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political
leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of
the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence,
because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent
President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30,
2010.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint
during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because
anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Puno’s
retirement byMay 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under
Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections
fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the
prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there
are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day
mandatory period for appointments) in which the outgoing President would be in no position to comply with the
constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not
have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme
Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against
midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for
the President – any President – to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of
the Supreme Court.
Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-
member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already
members or sitting justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when
circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate
President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the
Court even without a JBC list.

II
The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice
Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the
successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. — In case of a vacancy in the office of Chief Justice of the Supreme Court
or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in
precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply
to every Associate Justice who succeeds to the office of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event
that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the
office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is
appointed or until the disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby
resolved the question of consequence, we do not find it amiss to confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and
14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC
for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the
Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The
express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the
membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely
on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is
to defy the plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting
or temporarycapacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of
1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief
Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted
because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on
Appointments, and the confirmation process might take longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice
who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are
popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments.
However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because
the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the
nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the
Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the
incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor
of Chief Justice Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation
of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other
hand. As summarized in the comment of the OSG, the chronology of succession is as follows:

1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the
same day;

2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;

3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the
following day, December 8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office
the following early morning of November 30, 1998;

5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the
next day, December 20, 2005; and

6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief
Justice at midnight of December 6, 2006.[85]

III
Writ of mandamus does not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.[86] It is proper when
the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to
direct the exercise of a judgment or discretion in a particular way.[87]

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to
the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c)
the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not
discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for
every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no
confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court
within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower
courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the
candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in
the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of
the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be
unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time
granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the
appointment.
The duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90-day period to
appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies
within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to
the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty,
there must be an unjustified delay in performing that duty.[88] For mandamus to lie against the JBC, therefore, there should be
an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President.

The distinction between a ministerial act and a discretionary one has been delineated in the following manner:

The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is
one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ
of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May
17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the
compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief
Justice. Hence, Soriano’s petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in
the process of nominating the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted
against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members
from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by
raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners’ actual
interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the
Judiciary. Thus, the petitioners lack locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition
formandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May
17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to
the President the short list of nominees corresponding thereto in accordance with this decision.

SO ORDERED.
EN BANC
G.R. No. 199082 July 23, 2013
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the
Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as Chairperson of the Commission on Elections; and the
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE,
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M.
PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
RESOLUTION
PERALTA, J.:
For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal Arroyo (GMA)1 in G.R.
No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that the Court take a second look at our
September 18, 2012 Decision3 dismissing their petitions and supplemental petitions against respondents Commission on
Elections (Comelec), the Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), Joint DOJ-Comelec
Preliminary Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.
For a better perspective, we briefly state the relevant factual and procedural antecedents as found by the Court in the
assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint
Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. The Joint Committee was mandated to conduct the necessary preliminary investigation on the basis of
the evidence gathered and the charges recommended by the Fact-Finding Team. The Fact-Finding Team, on the other hand,
was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary
investigation to be conducted by the Joint Committee. Pursuant to Section 74 of the Joint Order, on August 23, 2011, the Joint
Committee promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the
May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and Maguindanao was indeed
perpetrated.6 The Fact-Finding Team recommended, among others, that petitioner Benjamin S. Abalos, Sr. (Abalos) be
subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and
South Cotabato; that GMA and Abalos be subjected to another preliminary investigation for manipulating the election results
in Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The case was docketed as DOJ-Comelec Case
No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral Sabotage against
petitioners and twelve others, and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-
2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-
2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee11 and
respondents therein were ordered to submit their Counter-Affidavits by November 14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint Committee, in view of the
pendency of his petition before the Court. On the same day, GMA filed before the Joint Committee an Omnibus Motion Ad
Cautelam15 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of electoral sabotage. GMA prayed that she be allowed to file her
counter-affidavit within ten (10) days from receipt of the requested documents.16Petitioner Abalos, for his part, filed a Motion
to Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA,
subsequently, filed a motion for reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the
Comelec.20 On November 18, 2011, the Comelec en banc issued a Resolution21 approving and adopting the Joint Resolution
subject to modifications. The Comelec resolved, among others, that an information for electoral sabotage be filed against
GMA and Abalos, while the charges against Mike Arroyo be dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the Regional Trial Court
(RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No.
RPSY-11-04432-CR.22 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was
served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam24 with leave to allow the
Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a hold
departure order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to
Vacate Ad Cautelam25 praying that its Resolution be vacated for being null and void. The RTC, nonetheless, issued a Warrant
for her arrest which was duly served. GMA was later arraigned and she entered a plea of "not guilty." She was, for some time,
on hospital arrest but was able to obtain temporary liberty when her motion for bail was granted. At present, she is again on
hospital arrest by virtue of a warrant issued in another criminal case.
On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No.
9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Team’s Initial Report dated
October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the
Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule
112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral
sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the subject joint DOJ-
Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and Concurring Opinion,27 Mike Arroyo insists that the
creation of the Joint Panel undermines the decisional independence of the Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when deputized by the
Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings before
the Court, Mike Arroyo claims that the proceedings involving the electoral sabotage case were rushed because of pressures
from the executive branch of the government.30
For her part, GMA claims that in availing of the procedural remedies available, she merely exercised her earnest
efforts to defend herself and should not have been deemed by the Court as acts which purportedly tend to demonstrate that
she either waived or forfeited her right to submit her counter-affidavit and countervailing evidence.31 Citing several cases
decided by the Court, she likewise faults the Court in not upholding her right to ask for additional time within which to submit
her counter-affidavit and countervailing evidence.32 GMA highlights that the subject Comelec Resolution creating the Joint
Panel is different from the previous Comelec resolutions requesting the DOJ Secretary to assign prosecutors to assist the
Comelec, as the latter emphasize the role of the DOJ as deputized agency in the conduct of preliminary investigation. She
maintains that it is the Comelec and not the Joint Committee that has the primary, if not exclusive, authority to conduct
preliminary investigation of election cases.33
In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and argue that it does not
undermine the independence of the Comelec as a constitutional body because it is still the Comelec that ultimately
determines probable cause.35 As to the conduct of the preliminary investigation, respondents maintain that no rights were
violated as GMA was afforded the opportunity to defend herself, submit her counter-affidavit and other countervailing
evidence.36 They, thus, consider GMA’s claim of availing of the remedial measures as "delaying tactics" employed to thwart
the investigation of charges against her by the Joint Committee.37
The Court’s Ruling
Clearly from the above discussion, movants raise issues that have been thoroughly explained by the Court in the
assailed decision. The issues were all addressed and the explanation was exhaustive, thus, we find no reason to disturb the
Court’s conclusions.
At any rate, if only to address the motions of the movants herein and to put an end to the questions attached to the
creation of the Joint Panel and, consequently, to the performance of their assigned tasks, we hereby reiterate our findings and
conclusions made in the assailed decision.
This is not the first time that the Court is confronted with the issue of whether the Comelec has the exclusive power
to investigate and prosecute cases of violations of election laws. In Barangay Association for National Advancement and
Transparency (BANAT) Party-List v. Commission on Elections,38 the constitutionality of Section 4339 of RA 936940 had already
been raised by petitioners therein and addressed by the Court. While recognizing the Comelec’s exclusive power to investigate
and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers
of the 1987 Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well be
amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the
government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No. 346741 dated January
12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and constituting a Joint Committee and Fact-Finding
Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. However, GMA seemed to miss the
date when these two resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467 was
issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No. 001-2011 as well as Comelec
Resolution Nos. 873342 and 905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued
during the effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the government the
concurrent jurisdiction to investigate and prosecute election offenses. This amendment paved the way for the discrepancy. In
Comelec Resolution No. 3467, the Comelec maintained the continuing deputation of prosecutors and the Comelec Law
Department was tasked to supervise the investigatory and prosecutory functions of the task force pursuant to the mandate of
the Omnibus Election Code. However, with the amendment, the Comelec likewise changed the tenor of the later resolutions
to reflect the new mandate of the Comelec and other prosecuting arms of the government now exercising concurrent
jurisdiction. Thus, the Comelec Law Department and the Office of the Chief State Prosecutor of the DOJ were tasked to jointly
supervise the investigatory and prosecutory functions of the Comelec-DOJ Task Force. Considering, therefore, that the later
resolutions, including Joint Order No. 001-2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of BP
881 which was declared "constitutional" in Banat, there is no reason for us to declare otherwise. To maintain the previous role
of other prosecuting arms of the government as mere deputies despite the amendment would mean challenging Section 43 of
RA 9369 anew which has already been settled in Banat.
To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent jurisdiction" authorized
by the amendatory law. As we explained in our September 18, 2012 Decision:
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. Contrary
to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate
bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as
the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially
the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office
over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the others.
xxxx
None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they
would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two
complaints – the initial report of the Fact-Finding Team and the complaint of Senator Pimentel – both complaints were filed
with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by
only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given
such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The
joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the
prompt disposition of the cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a provision in
the assailed Joint Order whereby the resolutions of the Joint Committee finding probable cause for election offenses shall still
be approved by the Comelec in accordance with the Comelec Rules of Procedure.45 With more reason, therefore, that we
cannot consider the creation of the Joint Committee as an abdication of the Comelec’s independence enshrined in the 1987
Constitution.
Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee.
The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules on Criminal
Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules,46 the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for his defense, within ten (10) days from
receipt of the subpoena, with the complaint and supporting affidavits and documents.47Also in both Rules, respondent is given
the right to examine evidence, but such right of examination is limited only to the documents or evidence submitted by
complainants which she may not have been furnished and to copy them at her expense.48
As to the alleged denial of GMA’s right to examine documents, we maintain that no right was violated in view of the
limitation of such right as set forth above. We reiterate our explanation in the assailed decision, to wit:
While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations
of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the
complaint filed. As stated in the Joint Committee’s Order dated November 15, 2011 denying GMA’s Omnibus Motion Ad
Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence. However, Senator Pimentel
manifested that he was adopting all the affidavits attached to the Fact-Finding Team’s Initial Report. Therefore, when GMA
was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed
by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that were referred to in Senator Pimentel’s complaint but were
not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing
the relevance of other evidence that may later be presented during the trial) as the evidence submitted before it were
considered adequate to find probable cause against her. x x x491âwphi1
Neither was GMA’s right violated when her motion for extension of time within which to submit her counter-affidavit
and countervailing evidence was consequently denied. The Rules use the term "shall" in requiring the respondent to submit
counter-affidavit and other countervailing evidence within ten (10) days from receipt of the subpoena. It is settled that the
use of the word "shall" which is a word of command, underscores the mandatory character of the rule.50 As in any other rule,
though, liberality in the application may be allowed provided that the party is able to present a compelling justification for the
non-observance of the mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant
motions or requests for extension of time to submit counter-affidavits when the interest of justice demands that respondent
be given reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records submitted
in support of the complaint or undertake research on novel, complicated or technical questions or issues of law and facts of
the case.51
In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period because she
needed to examine documents mentioned in Senator Pimentel’s complaint-affidavit. It appeared, however, that said
documents were not submitted to the Joint Committee and the only supporting documents available were those attached to
the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for
the extension of time within which to file her counter-affidavit, she very well knew that the documents she was asking were
not in the record of the case. Obviously, she was not furnished those documents because they were not submitted to the Joint
Committee. Logically, she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in
consequently denying her motion for extension to file counter-affidavit as there was no compelling justification for the non-
observance of the period she was earlier required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint Committee in terminating the investigation,
endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court.
However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be instantly
attributed to an injudicious performance of functions. The orderly administration of justice remains the paramount
consideration with particular regard to the peculiar circumstances of each case. To be sure, petitioners were given the
opportunity to present countervailing evidence. Instead of complying with the Joint Committee’s directive, several motions
were filed but were denied by the Joint Committee. Consequently, petitioners’ right to submit counter-affidavit and
countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following
the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally
reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in
court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in
fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of
cases, unnecessary delays should be avoided.52
Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of "not guilty," she
also filed a Motion for Bail and after due hearing, it was granted. Apparently, she benefited from the RTC Order giving her
temporary liberty. In filing the motion before the RTC and actively participating therein, she has chosen to seek judicial
remedy before the RTC where the electoral sabotage case is pending instead of the executive remedy of going back to the
Joint Committee for the submission of her counter-affidavit and countervailing evidence. Besides, as thoroughly discussed in
the assailed decision, the irregularity or even the absence of preliminary investigation does not impair the validity of the
information filed against her.
WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit.
SO ORDERED.
EN BANC

BARANGAY ASSOCIATION FOR NATIONAL G.R. NO. 177508


ADVANCEMENT AND TRANSPARENCY (BANAT) PARTY-LIST,
represented by SALVADOR B. BRITANICO, PROMULGATED:
Petitioner, AUGUST 7, 2009

- versus -

COMMISSION ON ELECTIONS,
RESPONDENT.
X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
DECISION

CARPIO, J.:
THE CASE
BEFORE THE COURT IS A PETITION FOR PROHIBITION[1] WITH A PRAYER FOR THE ISSUANCE OF A TEMPORARY
RESTRAINING ORDER OR A WRIT OF PRELIMINARY INJUNCTION[2] FILED BY PETITIONER BARANGAY ASSOCIATION FOR
NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT) PARTY LIST (PETITIONER) ASSAILING THE CONSTITUTIONALITY OF
REPUBLIC ACT NO. 9369 (RA 9369)[3] AND ENJOINING RESPONDENT COMMISSION ON ELECTIONS (COMELEC) FROM
IMPLEMENTING THE STATUTE.
RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill No. 5352 passed by the Senate on 7 December
2006 and the House of Representatives on 19 December 2006. On 23 January 2007, less than four months before the 14 May
2007 local elections, the President signed RA 9369. Two newspapers of general circulation, Malaya and Business Mirror,
published RA 9369 on 26 January 2007. RA 9369 thus took effect on 10 February 2007.

On 7 May 2007, petitioner, a duly accredited multi-sectoral organization, filed this petition for prohibition
alleging that RA 9369 violated Section 26(1), Article VI of the Constitution.[4] Petitioner also assails the constitutionality of
Sections 34, 37, 38, and 43 of RA 9369. According to petitioner, these provisions are of questionable application and doubtful
validity for failing to comply with the provisions of the Constitution.

The COMELEC and the Office of the Solicitor General (OSG) filed their respective Comments. At the outset, both
maintain that RA 9369 enjoys the presumption of constitutionality, save for the prayer of the COMELEC to declare Section 43
as unconstitutional.

The Assailed Provisions of RA 9369

Petitioner assails the following provisions of RA 9369:

1. Section 34 which provides:

SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as follows:
“SEC. 26. Official Watchers. - Every registered political party or coalition of political parties, and every
candidate shall each be entitled to one watcher in every polling place and canvassing center: Provided That, candidates for the
Sangguniang Panlalawigan, Sangguniang Panlunsod, or Sangguniang Bayan belonging to the same slate or ticket shall
collectively be entitled to only one watcher.
“The dominant majority party and dominant minority party, which the Commission shall determine in
accordance with law, shall each be entitled to one official watcher who shall be paid a fixed per diem of four hundred pesos
(400.00).
“There shall also recognized six principal watchers, representing the six accredited major political parties
excluding the dominant majority and minority parties, who shall be designated by the Commission upon nomination of the
said parties. These political parties shall be determined by the Commission upon notice and hearing on the basis of the
following circumstances:
“(a) The established record of the said parties, coalition of groups that now composed them, taking into
account, among other things, their showing in past election;
“(b) The number of incumbent elective officials belonging to them ninety (90) days before the date of
election;
“c) Their identifiable political organizations and strengths as evidenced by their organized/chapters;
“(d) The ability to fill a complete slate of candidates from the municipal level to the position of President; and
“(e) Other analogous circumstances that may determine their relative organizations and strengths.”
2. Section 37 which provides:

SEC. 37. Section 30 of Republic Act No. 7166 is hereby amended to read as follows:
“SEC. 30. Congress as the National Board of Canvassers for the Election of President and Vice President: The
Commission en banc as the National Board of Canvassers for the election of senators: Determination of Authenticity and Due
Execution of Certificates of Canvass. – Congress and the Commission en banc shall determine the authenticity and due
execution of the certificate of canvass for president and vice president and senators, respectively, as accomplished and
transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and
thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to
Congress by them; (2) each certificate of canvass contains the names of all of the candidates for president and vice president
or senator, as the case may be, and their corresponding votes in words and their corresponding votes in words and in figures;
(3) there exits no discrepancy in other authentic copies of the certificates of canvass or any of its supporting documents such
as statement of votes by city/municipality/by precinct or discrepancy in the votes of any candidate in words and figures in the
certificate; and (4) there exist no discrepancy in the votes of any candidate in words and figures in the certificates of canvass
against the aggregate number of votes appearing in the election returns of precincts covered by the certificate of
canvass: Provided, That certified print copies of election returns or certificates of canvass may be used for the purpose of
verifying the existence of the discrepancy.

“WHEN THE CERTIFICATE OF CANVASS, DULY CERTIFIED BY THE BOARD OF CANVASSERS OF EACH PROVINCE,
CITY OF DISTRICT, APPEARS TO BE INCOMPLETE, THE SENATE PRESIDENT OR THE CHAIRMAN OF THE COMMISSION, AS THE
CASE MAY BE, SHALL REQUIRE THE BOARD OF CANVASSERS CONCERNED TO TRANSMIT BY PERSONAL DELIVERY, THE
ELECTION RETURNS FORM POLLING PLACES THAT WERE NOT INCLUDED IN THE CERTIFICATE OF CANVASS AND SUPPORTING
STATEMENTS. SAID ELECTION RETURNS SHALL BE SUBMITTED BY PERSONAL DELIVERY WITHIN TWO (2) DAYS FROM RECEIPT
OF NOTICE.

“WHEN IT APPEARS THAT ANY CERTIFICATE OF CANVASS OR SUPPORTING STATEMENT OF VOTES BY


CITY/MUNICIPALITY OR BY PRECINCT BEARS ERASURES OR ALTERATION WHICH MAY CAST DOUBT AS TO THE VERACITY OF
THE NUMBER OF VOTES STATED HEREIN AND MAY AFFECT THE RESULT OF THE ELECTION, UPON REQUESTED OF THE
PRESIDENTIAL, VICE PRESIDENTIAL OR SENATORIAL CANDIDATE CONCERNED OR HIS PARTY, CONGRESS OR THE
COMMISSION EN BANC, AS THE CASE MAY BE SHALL, FOR THE SOLE PURPOSE OF VERIFYING THE ACTUAL NUMBER OF VOTES
CAST FOR PRESIDENT, VICE PRESIDENT OR SENATOR, COUNT THE VOTES AS THEY APPEAR IN THE COPIES OF THE ELECTION
RETURNS SUBMITTED TO IT.

“IN CASE OF ANY DISCREPANCY, INCOMPLETENESS, ERASURE OR ALTERATION AS MENTIONED ABOVE, THE
PROCEDURE ON PRE-PROCLAMATION CONTROVERSIES SHALL BE ADOPTED AND APPLIED AS PROVIDED IN SECTION 17,18,19
AND 20.
“ANY PERSON WHO PRESENT IN EVIDENCE A SIMULATED COPY OF AN ELECTION RETURN, CERTIFICATE OF
CANVASS OR STATEMENT OF VOTES, OR A PRINTED COPY OF AN ELECTION RETURN, CERTIFICATE OF CANVASS OR
STATEMENT OF VOTES BEARING A SIMULATED CERTIFICATION OR A SIMULATED IMAGE, SHALL BE GUILTY OF AN ELECTION
OFFENSE SHALL BE PENALIZED IN ACCORDANCE WITH BATAS PAMBANSA BLG. 881.”

3. SECTION 38 WHICH PROVIDES:

SEC. 38. SECTION 15 OF REPUBLIC ACT NO. 7166 IS HEREBY AMENDED TO READ AS FOLLOWS:

“SEC. 15. PRE-PROCLAMATION CASES IN ELECTIONS FOR PRESIDENT, VICE PRESIDENT, SENATOR, AND MEMBER
OF THE HOUSE OF REPRESENTATIVES. - FOR PURPOSES OF THE ELECTIONS FOR PRESIDENT, VICE PRESIDENT, SENATOR, AND
MEMBER OF THE HOUSE OF REPRESENTATIVES, NO PRE-PROCLAMATION CASES SHALL BE ALLOWED ON MATTERS RELATING
TO THE PREPARATION, TRANSMISSION, RECEIPT, CUSTODY AND APPRECIATION OF ELECTION RETURNS OR THE CERTIFICATES
OF CANVASS, AS THE CASE MAY BE, EXCEPT AS PROVIDED FOR IN SECTION 30 HEREOF. HOWEVER, THIS DOES NOT PRECLUDE
THE AUTHORITY OF THE APPROPRIATE CANVASSING BODY MOTU PROPRIO OR UPON WRITTEN COMPLAINT OF AN
INTERESTED PERSON TO CORRECT MANIFEST ERRORS IN THE CERTIFICATE OF CANVASS OR ELECTION RETURNS BEFORE IT.

“QUESTIONS AFFECTING THE COMPOSITION OR PROCEEDINGS OF THE BOARD OF CANVASSERS MAY BE


INITIATED IN THE BOARD OR DIRECTLY WITH THE COMMISSION IN ACCORDANCE WITH SECTION 19 HEREOF.

“ANY OBJECTION ON THE ELECTION RETURNS BEFORE THE CITY OR MUNICIPAL BOARD OF CANVASSERS, OR
ON THE MUNICIPAL CERTIFICATES OF CANVASS BEFORE THE PROVINCIAL BOARD OF CANVASSERS OR DISTRICT BOARD OF
CANVASSERS IN METRO MANILA AREA, SHALL BE SPECIFICALLY NOTICED IN THE MINUTES OF THE RESPECTIVE PROCEEDINGS.”

4. SECTION 43 WHICH PROVIDES:

SEC. 43. SECTION 265 OF BATAS PAMBANSA BLG. 881 IS HEREBY AMENDED TO READ AS FOLLOWS:

“SEC. 265. PROSECUTION. – THE COMMISSION SHALL, THROUGH ITS DULY AUTHORIZED LEGAL OFFICERS,
HAVE THE POWER, CONCURRENT WITH THE OTHER PROSECUTING ARMS OF THE GOVERNMENT, TO CONDUCT PRELIMINARY
INVESTIGATION OF ALL ELECTION OFFENSES PUNISHABLE UNDER THIS CODE, AND TO PROSECUTE THE SAME.”
THE ISSUES

PETITIONER RAISES THE FOLLOWING ISSUES:

1. WHETHER RA 9369 VIOLATES SECTION 26(1), ARTICLE VI OF THE CONSTITUTION;


WHETHER SECTIONS 37 AND 38 VIOLATE SECTION 17, ARTICLE VI[5] AND PARAGRAPH 7, SECTION 4, ARTICLE VII[6] OF
THE CONSTITUTION;
Whether Section 43 violates Section 2(6), Article IX-C of the Constitution;[7] and
WHETHER SECTION 34 VIOLATES SECTION 10, ARTICLE III OF THE CONSTITUTION.[8]

THE COURT’S RULING


THE PETITION HAS NO MERIT.
IS SETTLED THAT EVERY STATUTE IS PRESUMED TO BE CONSTITUTIONAL.[9]THE PRESUMPTION IS THAT THE
LEGISLATURE INTENDED TO ENACT A VALID, SENSIBLE AND JUST LAW. THOSE WHO PETITION THE
COURT TO DECLARE A LAW UNCONSTITUTIONAL MUST SHOW THAT THERE IS A CLEAR AND
UNEQUIVOCAL BREACH OF THE CONSTITUTION, NOT MERELY A DOUBTFUL, SPECULATIVE OR
.ARGUMENTATIVE ONE; OTHERWISE, THE PETITION MUST FAIL[10]
In this case, petitioner failed to justify why RA 9369 and the assailed provisions should be declared
unconstitutional.
RA 9369 does not violate Section 26(1), Article VI of the Constitution
Petitioner alleges that the title of RA 9369 is misleading because it speaks of poll automation but contains
substantial provisions dealing with the manual canvassing of election returns. Petitioner also alleges that Sections 34, 37, 38,
and 43 are neither embraced in the title nor germane to the subject matter of RA 9369.
Both the COMELEC and the OSG maintain that the title of RA 9369 is broad enough to encompass topics which deal
not only with the automation process but with everything related to its purpose encouraging a transparent, credible, fair, and
accurate elections.
The constitutional requirement that “every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof” has always been given a practical rather than a technical construction.[11] The
requirement is satisfied if the title is comprehensive enough to include subjects related to the general purpose which the
statute seeks to achieve.[12] The title of a law does not have to be an index of its contents and will suffice if the matters
embodied in the text are relevant to each other and may be inferred from the title.[13] Moreover, a title which declares a
statute to be an act to amend a specified code is sufficient and the precise nature of the amendatory act need not be further
stated.[14]
RA 9369 is an amendatory act entitled “An Act Amending Republic Act No. 8436, Entitled ‘An Act Authorizing the
Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in
Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections,
Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and Other Related Election Laws,
Providing Funds Therefor and For Other Purposes.’” Clearly, the subject matter of RA 9369 covers the amendments to RA
8436, Batas Pambansa Blg. 881 (BP 881),[15] Republic Act No. 7166 (RA 7166),[16] and other related election laws to achieve its
purpose of promoting transparency, credibility, fairness, and accuracy in the elections. The provisions of RA 9369 assailed by
petitioner deal with amendments to specific provisions of RA 7166 and BP 881, specifically: (1) Sections 34, 37 and 38 amend
Sections 26, 30 and 15 of RA 7166, respectively; and (2) Section 43 of RA 9369 amends Section 265 of BP 881. Therefore, the
assailed provisions are germane to the subject matter of RA 9369 which is to amend RA 7166 and BP 881, among others.

Sections 37 and 38 do not violate Section 17, Article VI and Paragraph 7, Section 4, Article VII of the Constitution

PETITIONER ARGUES THAT SECTIONS 37 AND 38 VIOLATE THE CONSTITUTION BY IMPAIRING THE POWERS OF
THE PRESIDENTIAL ELECTORAL TRIBUNAL (PET) AND THE SENATE ELECTORAL TRIBUNAL (SET). ACCORDING TO PETITIONER,
UNDER THE AMENDED PROVISIONS, CONGRESS AS THE NATIONAL BOARD OF CANVASSERS FOR THE ELECTION OF PRESIDENT
AND VICE PRESIDENT (CONGRESS), AND THE COMELEC EN BANC AS THE NATIONAL BOARD OF CANVASSERS (COMELEC EN
BANC), FOR THE ELECTION OF SENATORS MAY NOW ENTERTAIN PRE-PROCLAMATION CASES IN THE ELECTION OF THE
PRESIDENT, VICE PRESIDENT, AND SENATORS. PETITIONER CONCLUDES THAT IN ENTERTAINING PRE-PROCLAMATION CASES,
CONGRESS AND THE COMELEC EN BANC UNDERMINE THE INDEPENDENCE AND ENCROACH UPON THE JURISDICTION OF THE
PET AND THE SET.
The COMELEC maintains that the amendments introduced by Section 37 pertain only to the adoption and
application of the procedures on pre-proclamation controversies in case of any discrepancy, incompleteness, erasure or
alteration in the certificates of canvass. The COMELEC adds that Section 37 does not provide that Congress and the
COMELEC en banc may now entertain pre-proclamation cases for national elective posts.
OSG argues that the Constitution does not prohibit pre-proclamation cases involving national elective
posts. According to the OSG,
ONLY SECTION 15 OF RA 7166[17]EXPRESSLY DISALLOWS PRE-PROCLAMATION CASES
INVOLVING NATIONAL ELECTIVE POSTS BUT THIS PROVISION WAS SUBSEQUENTLY AMENDED BY
.SECTION 38 OF RA 9369
In Pimentel III v. COMELEC,[18] we already discussed the implications of the amendments introduced by Sections
37 and 38 to Sections 15 and 30[19] of RA 7166, respectively and we declared:
Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act No. 9369 to Sections
15 and 30 of Republic Act No. 7166, pre-proclamation cases involving the authenticity and due execution of certificates of
canvass are now allowed in elections for President, Vice-President, and Senators. The intention of Congress to treat a case
falling under Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, as a pre-proclamation case is
apparent in the fourth paragraph of the said provision which adopts and applies to such a case the same procedure provided
under Sections 17, 18, 19 and 20 of Republic Act No. 7166 on pre-proclamation controversies.

In sum, in [the] elections for President, Vice-President, Senators and Members of the House of Representatives,
the general rule is still that pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and
appreciation of election returns or certificates of canvass are still prohibited. As with other general rules, there are recognized
exceptions to the prohibition, namely: (1) correction of manifest errors; (2) questions affecting the composition or proceeding
of the board of canvassers; and (3) determination of the authenticity and due execution of certificates of canvass as provided
in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369.[20]

In the present case, Congress and the COMELEC en banc do not encroach upon the jurisdiction of the PET and
the SET. There is no conflict of jurisdiction since the powers of Congress and the COMELEC en banc, on one hand, and the
PET and the SET, on the other, are exercised on different occasions and for different purposes. The PET is the sole judge of
all contests relating to the election, returns and qualifications of the President or Vice President. The SET is the sole judge
of all contests relating to the election, returns, and qualifications of members of the Senate. The jurisdiction of the PET and
the SET can only be invoked once the winning presidential, vice presidential or senatorial candidates have been
proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall determine only the authenticity
and due execution of the certificates of canvass. Congress and the COMELEC en banc shall exercise this power before the
proclamation of the winning presidential, vice presidential, and senatorial candidates.

Section 43 does not violate Section 2(6), Article IX-C of the Constitution
Both petitioner and the COMELEC argue that the Constitution vests in the COMELEC the “exclusive power” to
investigate and prosecute cases of violations of election laws. Petitioner and the COMELEC allege that Section 43 is
unconstitutional because it gives the other prosecuting arms of the government concurrent power with the COMELEC to
investigate and prosecute election offenses.[21]
We do not agree with petitioner and the COMELEC that the Constitution gave the COMELEC the “exclusive
power” to investigate and prosecute cases of violations of election laws.

Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to “investigate and, where
appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses,
and malpractices.” This was an important innovation introduced by the Constitution because this provision was not in
the 1935[22] or 1973[23]Constitutions.[24] The phrase “[w]here appropriate” leaves to the legislature the power to determine
the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the
government.
The grant of the “exclusive power” to the COMELEC can be found in Section 265 of BP 881, which provides:
Sec. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive
power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the
same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in
the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.
(Emphasis supplied)

This was also an innovation introduced by BP 881. The history of election laws shows that prior to BP 881, no such
“exclusive power” was ever bestowed on the COMELEC.[25]
We also note that while Section 265 of BP 881 vests in the COMELEC the “exclusive power” to conduct
preliminary investigations and prosecute election offenses, it likewise authorizes the COMELEC to avail itself of the assistance
of other prosecuting arms of the government. In the 1993 COMELEC Rules of Procedure, the authority of the COMELEC was
subsequently qualified and explained.[26] The 1993 COMELEC Rules of Procedure provides:

Rule 34 - Prosecution of Election Offenses

Sec. 1. Authority of the Commission to Prosecute Election Offenses. - The Commission shall have the exclusive
power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the
same, except as may otherwise be provided by law. (Emphasis supplied)

It is clear that the grant of the “exclusive power” to investigate and prosecute election offenses to the
COMELEC was not by virtue of the Constitution but by BP 881, a legislative enactment. If the intention of the framers of the
Constitution were to give the COMELEC the “exclusive power” to investigate and prosecute election offenses, the framers
would have expressly so stated in the Constitution. They did not.
In People v. Basilla,[27] we acknowledged that without the assistance of provincial and city fiscals and their assistants
and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and
prosecution of election offenses committed before or in the course of nationwide elections would simply not be
possible.[28] In COMELEC v. Español,[29]we also stated that enfeebled by lack of funds and the magnitude of its workload, the
COMELEC did not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases.[30] The
prompt investigation, prosecution, and disposition of election offenses constitute an indispensable part of the task of securing
free, orderly, honest, peaceful, and credible elections.[31] Thus, given the plenary power of the legislature to amend or repeal
laws, if Congress passes a law amending Section 265 of BP 881, such law does not violate the Constitution.
Section 34 does not violate Section 10, Article III of the Constitution
assails the constitutionality of the provision which fixes the per diem of poll watchers of the dominant majority
and dominant minority parties at Pon election day. Petitioner argues that this violates the freedom of the parties to
contract and their right to fix the terms and conditions of the contract they see as fair, equitable and just. Petitioner
.adds that this is a purely private contract using private funds which cannot be regulated by law
The OSG argues that petitioner erroneously invoked the non-impairment clause because this only applies to
previously perfected contracts. In this case, there is no perfected contact and, therefore, no obligation will be impaired.

Both the COMELEC and the OSG argue that the law is a proper exercise of police power and it will prevail over a
contract. According to the COMELEC, poll watching is not just an ordinary contract but is an agreement with the solemn duty
to ensure the sanctity of votes. The role of poll watchers is vested with public interest which can be regulated by Congress in
the exercise of its police power. The OSG further argues that the assurance that the poll watchers will receive fair and
equitable compensation promotes the general welfare. The OSG also states that this was a reasonable regulation considering
that the dominant majority and minority parties will secure a copy of the election returns and are given the right to assign poll
watchers inside the polling precincts.

There is no violation of the non-impairment clause. First, the non- impairment clause is limited in application to
laws that derogate from prior acts or contracts by enlarging, abridging or in any manner changing the intention of the
parties.[32] There is impairment if a subsequent law changes the terms of a contract between the parties, imposes new
conditions, dispenses with those agreed upon or withdraws remedies for the enforcement of the rights of the parties.[33]
As observed by the OSG, there is no existing contract yet and, therefore, no enforceable right or demandable
obligation will be impaired. RA 9369 was enacted more than three months prior to the 14 May 2007 elections. Hence, when
the dominant majority and minority parties hired their respective poll watchers for the 14 May 2007 elections, they were
deemed to have incorporated in their contracts all the provisions of RA 9369.
Second, it is settled that police power is superior to the non-impairment clause.[34] The constitutional guaranty
of non-impairment of contracts is limited by the exercise of the police power of the State, in the interest of public health,
safety, morals, and general welfare of the community.
Section 8 of COMELEC Resolution No. 1405[35] specifies the rights and duties of poll watchers:

THE WATCHERS SHALL HAVE THE RIGHT TO STAY IN THE SPACE RESERVED FOR THEM INSIDE THE POLLING
PLACE. THEY SHALL HAVE THE RIGHT TO WITNESS AND INFORM THEMSELVES OF THE PROCEEDINGS OF THE BOARD; TO TAKE
NOTES OF WHAT THEY MAY SEE OR HEAR, TO TAKE PHOTOGRAPHS OF THE PROCEEDINGS AND INCIDENTS, IF ANY, DURING
THE COUNTING OF VOTES, AS WELL AS THE ELECTION RETURNS, TALLY BOARD AND BALLOT BOXES; TO FILE A PROTEST
AGAINST ANY IRREGULARITY OR VIOLATION OF LAW WHICH THEY BELIEVE MAY HAVE BEEN COMMITTED BY THE BOARD OR
BY ANY OF ITS MEMBERS OR BY ANY PERSON; TO OBTAIN FROM THE BOARD A CERTIFICATE AS TO THE FILING OF SUCH
PROTEST AND/OR OF THE RESOLUTION THEREON; TO READ THE BALLOTS AFTER THEY SHALL HAVE BEEN READ BY THE
CHAIRMAN, AS WELL AS THE ELECTION RETURNS AFTER THEY SHALL HAVE BEEN COMPLETED AND SIGNED BY THE MEMBERS
OF THE BOARD WITHOUT TOUCHING THEM, BUT THEY SHALL NOT SPEAK TO ANY MEMBER OF THE BOARD, OR TO ANY
VOTER, OR AMONG THEMSELVES, IN SUCH A MANNER AS WOULD DISTURB THE PROCEEDINGS OF THE BOARD; AND TO BE
FURNISHED, UPON REQUEST, WITH A CERTIFICATE OF VOTES FOR THE CANDIDATES, DULY SIGNED AND THUMBMARKED BY
THE CHAIRMAN AND ALL THE MEMBERS OF THE BOARD OF ELECTION INSPECTORS.

Additionally, the poll watchers of the dominant majority and minority parties in a precinct shall, if available, affix their
signatures and thumbmarks on the election returns for that precinct.[36] The dominant majority and minority parties shall also
be given a copy of the certificates of canvass[37] and election returns[38] through their respective poll watchers. Clearly, poll
watchers play an important role in the elections.

MOREOVER, WHILE THE CONTRACTING PARTIES MAY ESTABLISH SUCH STIPULATIONS, CLAUSES, TERMS, AND
CONDITIONS AS THEY MAY DEEM CONVENIENT, SUCH STIPULATIONS SHOULD NOT BE CONTRARY TO LAW, MORALS, GOOD
CUSTOMS, PUBLIC ORDER, OR PUBLIC POLICY.[39]

IN BELTRAN V. SECRETARY OF HEALTH,[40] WE SAID:

FURTHERMORE, THE FREEDOM TO CONTRACT IS NOT ABSOLUTE; ALL CONTRACTS AND ALL RIGHTS ARE
SUBJECT TO THE POLICE POWER OF THE STATE AND NOT ONLY MAY REGULATIONS WHICH AFFECT THEM BE ESTABLISHED BY
THE STATE, BUT ALL SUCH REGULATIONS MUST BE SUBJECT TO CHANGE FROM TIME TO TIME, AS THE GENERAL WELL-BEING
OF THE COMMUNITY MAY REQUIRE, OR AS THE CIRCUMSTANCES MAY CHANGE, OR AS EXPERIENCE MAY DEMONSTRATE THE
NECESSITY.[41] (EMPHASIS SUPPLIED)
THEREFORE, ASSUMING THERE WERE EXISTING CONTRACTS, SECTION 34 WOULD STILL BE CONSTITUTIONAL
BECAUSE THE LAW WAS ENACTED IN THE EXERCISE OF THE POLICE POWER OF THE STATE TO PROMOTE THE GENERAL
WELFARE OF THE PEOPLE. WE AGREE WITH THE COMELEC THAT THE ROLE OF POLL WATCHERS IS INVESTED WITH PUBLIC
INTEREST. IN FACT, EVEN PETITIONER CONCEDES THAT POLL WATCHERS NOT ONLY GUARD THE VOTES OF THEIR RESPECTIVE
CANDIDATES OR POLITICAL PARTIES BUT ALSO ENSURE THAT ALL THE VOTES ARE PROPERLY COUNTED. ULTIMATELY, POLL
WATCHERS AID IN FAIR AND HONEST ELECTIONS. POLL WATCHERS HELP ENSURE THAT THE ELECTIONS ARE TRANSPARENT,
CREDIBLE, FAIR, AND ACCURATE. THE REGULATION OF THE PER DIEM OF THE POLL WATCHERS OF THE DOMINANT MAJORITY
AND MINORITY PARTIES PROMOTES THE GENERAL WELFARE OF THE COMMUNITY AND IS A VALID EXERCISE OF POLICE
POWER.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.
EN BANC

LA CARLOTA CITY, NEGROS OCCIDENTAL, G.R. No. 181367


represented by its Mayor, HON. JEFFREY P. Promulgated:
FERRER,*and the SANGGUNIANG PANLUNGSOD OF April 24, 2012
LA CARLOTA CITY, NEGROS OCCIDENTAL,
represented by its Vice-Mayor, HON. DEMIE JOHN C.
HONRADO,**
Petitioners,

- versus -
ATTY. REX G. ROJO,
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO, J.:

This petition for review assails the 14 September 2007 Decision1 and the 18 January 2008 Resolution2 of the Court of
Appeals in CA-G.R. CEB-SP No. 01377. The Court of Appeals affirmed Resolution Nos. 0506543 and 0516464 of the Civil Service
Commission, which affirmed the Decision dated 20 September 2004 of the Civil Service Commission Regional Office (CSCRO)
No. VI, Iloilo City, approving the appointment of respondent Atty. Rex G. Rojo (respondent)
as Sangguniang Panlungsod Secretary under a permanent status.

The Facts

The facts as found by the Court of Appeals are as follows:

On March 18, 2004, [the] then Vice-Mayor Rex R. Jalandoon of La Carlota City, Negros Occidental appointed Atty. Rex
G. Rojo (or Rojo) who had just tendered his resignation as member of the Sangguniang Panlungsod the day preceding such
appointment, as Sangguniang Panlungsod Secretary. The status of the appointment was permanent. The next day, March 19,
2004, the Vice-Mayor submitted Rojo’s appointment papers to the Civil Service Commission Negros Occidental Field Office
(CSCFO-Negros Occidental) for attestation. In a Letter dated March 24, 2004, the said CSCFO wrote Jalandoon to inform him of
the infirmities the office found on the appointment documents, i.e. the Chairman of the Personnel Selection Board and the
Human Resource Management Officer did not sign the certifications, the latter relative to the completeness of the documents
as well as to the publication requirement. In view of the failure of the appointing authority to comply with the directive, the
said CSCFO considered the appointment of Rojo permanently recalled or withdrawn, in a subsequent Letter
to Jalandoon dated April 14, 2004.

Jalandoon deemed the recall a disapproval of the appointment, hence, he brought the matter to the CSC Regional
Office No. 6 in Iloilo City, by way of an appeal. He averred that the Human Resource Management Officer of La Carlota City
refused to affix his signature on Rojo’s appointment documents but nonetheless transmitted them to the CSCFO. Such
transmittal, according to Jalandoon, should be construed that the appointment was complete and regular and that it complied
with the pertinent requirements of a valid appointment. Before the said CSC Regional Office No. 6 [could resolve the appeal],
the City of La Carlota represented by the newly elected mayor, Hon. Jeffrey P. Ferrer and
the Sangguniang Panlungsod represented by the newly elected Vice-Mayor, Hon. Demie John C. Honrado, collectively, the
petitioners herein, intervened. They argued that Jalandoon is not the real party in interest in the appeal butRojo who, by his
inaction, should be considered to have waived his right to appeal from the disapproval of his appointment; that the
appointment was made within the period of the election ban prior to the May 14, 2004 national and local elections, and
finally, that the resignation of Rojo as member of theSangguniang Panlungsod is ineffective having not complied with the
provision on quorum under Section 82(d) of R.A. No. 7160.

In a Decision dated September 20, 2004, the CSC Regional Office No. 6 reversed and set aside the CSCFO’s earlier
ruling. On the argument of theintervenors that the former Vice-Mayor lacked legal personality to elevate the case on appeal,
the regional office cited settled jurisprudence that the disapproval of an appointment affects the discretionary authority of
the appointing authority. Hence, he alone may request for reconsideration of or appeal the disapproval of an appointment.
The regional office likewise ruled that Rojo’s appointment on March 18, 2004 was made outside the period of the election ban
from March 26 to May 9, 2004, and that his resignation from the Sangguniang Panlungsod was valid having been tendered
with the majority of the council members in attendance (seven (7) out of the thirteen councilors were present). Considering
that the appointment of Rojo sufficiently complied with the publication requirement, deliberation by the Personnel Selection
Board, certification that it was issued in accordance with the limitations provided for under Section 325 of R.A. 7160 and that
appropriations or funds are available for said position, the regional office approved the same. x x x

Mayor Ferrer and Vice-Mayor Honrado appealed the foregoing Decision of the CSC Regional Office No. 6 to the Civil
Service Commission (or Commission). On May 17, 2005, the Commission dismissed said appeal on the ground that the
appellants were not the appointing authority and weretherefore improper parties to the appeal. Despite its ruling of dismissal,
the Commission went on to reiterate CSC Regional Office’s discussion on the appointing authority’s compliance with the
certification and deliberation requirements, as well as the validity of appointee’s tender of resignation. x x x

It likewise denied the motion for reconsideration thereafter filed by the petitioners in a Resolution dated November
8, 2005.5

Petitioners filed a petition for review with the Court of Appeals. On 14 September 2007, the Court of Appeals denied
the petition, and affirmed Resolution Nos. 050654 and 051646 of the Civil Service Commission, dated 17 May 2005 and 8
November 2005, respectively. Petitioners filed a Motion for Reconsideration, which the Court of Appeals denied in its
Resolution dated 18 January 2008.

Hence, this petition for review.

The Ruling of the Court of Appeals

Citing Section 9(h), Article V of Presidential Decree No. 8076 or the Civil Service Decree, the Court of Appeals held that
“in the attestation of an appointment made by a head of agency, the duty of the Civil Service Commission does not go beyond
ascertaining whether the appointee possesses the appropriate civil service eligibility and the minimum statutory
qualifications.”7 In this case, the Court of Appeals found that respondent met the minimum qualifications for the position of
Secretary of the Sanggunian, as enumerated under Section 469(b), Article I, Title V of the Local Government Code.8 In fact, the
Court of Appeals held that respondent is more than qualified for the position considering that respondent is a lawyer and an
active member of the bar. Furthermore, the requirements for the appointment of respondent have been substantially
complied with: (a) publication; (b) Personnel Selection Board deliberation; and (c) certification from the appropriate offices
that appropriations or funds are available for the position. Thus, the Court of Appeals ruled that there was no sufficient reason
for the Commission to disapprove respondent’s appointment.

On the issue of the lack of signature of the Human Resource Management Officer of La Carlota City on respondent’s
appointment papers, the Court of Appeals held that such refusal of the officer to affix his signature should not affect the
validity of the appointment. Otherwise, “it would be tantamount to putting the appointing power under the mercy of a
department head who may without reason refuse to perform a ministerial function, as what happened in the instant case.”9

The Court of Appeals also found that the appointment of respondent on 18 March 2004 did not violate the election
ban period which was from 26 March to 9 May 2004. Furthermore, there was no substantial evidence to show that the
appointment was a “midnight appointment.”

Thus, the Court of Appeals concluded that since respondent possessed the minimum qualifications for the position
of SangguniangPanlungsod Secretary, and the appointing authority has adequately complied with the other requirements for
a valid appointment, then the Civil Service Commission’s approval of the appointment was only proper.

The Issues

Petitioners raise the following issues:

1. WHETHER THE APPOINTMENT OF RESPONDENT AS SANGGUNIANG PANLUNGSOD SECRETARY VIOLATED THE


CONSTITUTIONAL PROSCRIPTION AGAINST ELIGIBILITY OF AN ELECTIVE OFFICIAL FOR APPOINTMENT DURING HIS TENURE;
and
2. WHETHER RESPONDENT’S APPOINTMENT AS SANGGUNIANG PANLUNGSOD SECRETARY WAS ISSUED CONTRARY
TO EXISTING CIVIL SERVICE RULES AND REGULATIONS.10

The Ruling of the Court

Petitioners allege that respondent’s appointment as Sangguniang Panlungsod Secretary is void. Petitioners maintain
that respondent’s irrevocable resignation as a Sangguniang Panlungsod member was not deemed accepted when it was
presented on 17 March 2004 during the scheduled regular session of the Sangguniang Panlungsod of La Carlota City, Negros
Occidental for lack of quorum. Consequently, respondent was still an incumbent regular Sangguniang Panlungsod member
when then Vice Mayor Jalandoon appointed him as Sangguniang Panlungsod Secretary on 18 March 2004, which contravenes
Section 7, Article IX-B of the Constitution.11

The resolution of this case requires the application and interpretation of certain provisions of Republic Act No. 7160
(RA 7160), otherwise known as the Local Government Code of 1991. The pertinent provisions read:

Section 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials shall be deemed effective
only upon acceptance by the following authorities:
(1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and
independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of
component cities;
(3) The sanggunian concerned, in case of sanggunian members; and

(4)The city or municipal mayor, in the case of barangay officials.


(b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid
authorities, shall be furnished the Department of Interior and Local Government.
(c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working
days from receipt thereof.
(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open
session of the sanggunianconcerned and duly entered in its records: Provided, however,That this subsection does not apply
to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting
upon such resignations.

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the
city vice-mayor, of thesangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and
the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.
(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members
present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten
(10) days from the passage of ordinances enacted and resolutions adopted by thesanggunian in the session over which he
temporarily presided.

Section 52. Sessions. (a) On the first day of the session immediately following the election of its members,
the sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum number of regular
sessions shall be once a week for the sangguniang panlalawigan, sangguniangpanlungsod, and sangguniang bayan, and twice a
month for the sangguniang barangay.
(b) When public interest so demands, special session may be called by the local chief executive or by a majority of the
members of the sanggunian.
(c) All sanggunian sessions shall be open to the public unless a closed-door session is ordered by an affirmative vote of
a majority of the members present, there being a quorum, in the public interest or for reasons of security, decency, or
morality. No two (2) sessions, regular or special, may be held in a single day.
(d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the
member’s usual place of residence at least twenty-four (24) hours before the special session is held. Unless otherwise
concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be
considered at a special session except those stated in the notice.
(e) Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of
the sanggunian concerned.

Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall
constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding
officer shall immediately proceed to call the roll of the members and thereafter announce the results.
(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted,
or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any
member absent without justifiable cause by designating a member of thesanggunian, to be assisted by a member or members
of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member
and present him at the session.
(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be
transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session
adjourned for lack of quorum.

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of
the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of
the liga ng mga barangay, the president of thepanlungsod na pederasyon ng mga sangguniang kabataan, and
the sectoral representatives, as members.
(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the
agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural
communities, or disabled persons.
(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the
manner as may be provided for by law. (Boldfacing supplied)

Petitioners insist that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in
determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of
the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not reached
to constitute a quorum, then no business could have validly been transacted on that day including the acceptance of
respondent’s irrevocable resignation.

On the other hand, respondent maintains that in this case, the Sangguniang Panlungsod consists of the presiding
officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. Citing the Department
of Interior and Local Government (DILG) Opinion No. 28, s. 2000,12 dated 17 April 2000, respondent asserts that the vice-
mayor, as presiding officer, should be included in determining the existence of a quorum. Thus, since there were six (6)
members plus the presiding officer, or a total of seven (7) who were present on the 17 March 2004 regular session of
the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly
accepted.

The 1987 Constitution mandates Congress to enact a local government code which provides, among others, the
powers, functions and duties of local officials and all other matters relating to the organization and operation of the local
government units. Section 3, Article X of the 1987 Constitution states:

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective mechanism of recall,
initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources,
and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied)

Thus, the Local Government Code “shall x x x provide for the x x x powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the local units.” In short, whether a vice-mayor has the
power, function or duty of a member of the Sangguniang Panlungsod is determined by the Local Government Code.

On 10 October 1991, the Congress approved RA 7160 or the Local Government Code. Under RA 7160, the city vice-
mayor, as presiding officer, is a member of the Sangguniang Panlungsod, thus:

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the
city vice-mayor, of thesangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and
the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members
present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten
(10) days from the passage of ordinances enacted and resolutions adopted by thesanggunian in the session over which he
temporarily presided.

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of
the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of
the liga ng mga barangay, the president of thepanlungsod na pederasyon ng mga sangguniang kabataan, and
the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the
agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural
communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the
manner as may be provided for by law. (Boldfacing and underscoring supplied)

RA 7160 clearly states that the Sangguniang Panlungsod “shall be composed of the city vice-mayor as presiding
officer, the regularsanggunian members, the president of the city chapter of the liga ng mga barangay, the president of
the panlungsod na pederasyon ng mgasangguniang kabataan, and the sectoral representatives, as members.” Black’s Law
Dictionary defines “composed of” as “formed of” or “consisting of.” As the presiding officer, the vice-mayor can vote only to
break a tie. In effect, the presiding officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, the
vice-mayor, as presiding officer, is a “member” of the SangguniangPanlungsod considering that he is mandated under Section
49 of RA 7160 to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where the
presiding officer who votes to break a tie during a Sanggunian session is not considered a “member” of the Sanggunian.

The Senate deliberations on Senate Bill No. 155 (Local Government Code) show the intent of the Legislature to treat
the vice-mayor not only as the presiding officer of the Sangguniang Panlungsod but also as a member of
the Sangguniang Panlungsod. The pertinent portions of the deliberations read:

Senator Pimentel. Before Senator Rasul and Senator Lina take the floor, Mr. President, may I reiterate this
observation, that changes in the presidingofficership of the local sanggunians are embodied for the municipality where the
vice-mayor will now be the presiding officer of the sanggunian and the province where the vice-governor will now be the
presiding officer. We did not make any change in the city because the city vice-mayor is already the presiding officer.

The President. All right.

Senator Rasul, Senator Lina, and Senator Gonzales.

Senator Gonzales. May I just add something to that statement of Senator Pimentel?

The President. All right.

Senator Gonzales. Reading this bill, there is also a fundamental change in the sense that the provincial governor,
the city mayor, the municipal mayor, as well as, the punong barangay are no longer members of their
respective sanggunian; they are no longer members. Unlike before, when they were members of their
respective sanggunian, now they are not only the presiding officers also, they are not members of their
respective sanggunian.

Senator Pimentel. May I thank Senator Gonzales for that observation. (Boldfacing supplied)

During the deliberations, Senator Pimentel, the principal author of the the Local Government Code of 1991, clearly
agrees with Senator Gonzales that the provincial governor, the city mayor, and the municipal mayor who were previously the
presiding officers of their respective sanggunian are no longer the presiding officers under the proposed Local Government
Code, and thus, they ceased to be members of their respective sanggunian.13 In the same manner that under the Local
Government Code of 1991, the vice-governor, the city vice-mayor, and the municipal vice-mayor, as presiding officers of
the Sangguniang Panlalawigan, Sangguniang Panlungsod,Sangguniang Bayan, respectively, are members of their
respective sanggunian.

In the 2004 case of Zamora v. Governor Caballero,14 the Court interpreted Section 53 of RA 7160 to mean that the
entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan. The Court held:

“Quorum” is defined as that number of members of a body which, when legally assembled in their proper places, will
enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a
law or ordinance or do any valid act. “Majority,” when required to constitute a quorum, means the number greater than half
or more than half of any total. In fine, the entire membership must be taken into account in computing the quorum of
the sangguniang panlalawigan, for while the constitution merely states that “majority of each House shall constitute a
quorum,” Section 53 of the LGC is more exacting as it requires that the “majority of all members of the sanggunian . . . elected
and qualified” shall constitute a quorum.

The trial court should thus have based its determination of the existence of a quorum on the total number of
members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a
majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is
already addressed by the grant of coercive power to a mere majority of sanggunian
members present when there is no quorum.

A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the
participation of all its members so that they may not only represent the interests of their respective constituents but also help
in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done
outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more
importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts
done during an unauthorized session.15

In stating that there were fourteen (14) members of the Sanggunian,16 the Court in Zamora clearly included the Vice-
Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into
account in computing the quorum.

DILG Opinions, which directly ruled on the issue of whether the presiding officer should be included to determine the
quorum of thesanggunian, have consistently conformed to the Court’s ruling in Zamora.

In DILG Opinion No. 46, s. 2007, the Undersecretary for Local Government clearly stated that the vice-mayor is
included in the determination of a quorum in the sanggunian. The DILG Opinion reads:

DILG Opinion No. 46, s. 2007


02 July 2007

MESSRS. JAMES L. ENGLE,


FEDERICO O. DIMPAS, JR.,
MARIFE G. RONDINA,
PORFERIO D. DELA CRUZ, and
WINSTON B. MENZON
Sangguniang Bayan Membership
Babatngon, Leyte

Dear Gentlemen and Lady:

This has reference to your earlier letter asking our opinion on several issues, which we quoted herein in toto:

“(1) What is the number that would determine the quorum of our sanggunian that has a total membership of
eleven (11) including the vice-mayor?

(2) Are the resolutions adopted by a sanggunian without quorum valid?

In reply to your first query, may we invite your attention to Section 446 (a) of the Local Government Code of 1991 (RA
7160) which provides and we quote:

“SECTION 446. Composition. – (a) The Sangguniang bayan, the legislative body of the municipality, shall be composed
of the municipal vice-mayor as the presiding officer, the regular sangguniang members, the president of the municipal chapter
of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and
the sectoral representatives, as members.”

Based on the aforequoted provision, the Sangguniang Bayan is composed of eight (8) regular members,
the Liga ng mga Barangay President, the SK Federation President, the Vice-Mayor as Presiding Officer and
the sectoral representatives.

Under the old Local Government Code (Batas Pambansa Blg. 337), the Presiding Officer then of the sanggunian was
the Mayor. Thus, there was a dilemma as to whether or not the Vice-Mayor, as Presiding Officer, is to be included in the
determination of quorum in the SangguniangBayan. This issue was, however, resolved with the advent of the new Local
Government Code of 1991 (RA 7160) providing the aforequotedprovision. Hence, the vice-mayor is included in the
determination of a quorum in the sanggunian.

Based on the aforequoted provision, sectoral representatives are also included in the determination of quorum in
the sangguniang bayan. Let it be noted however that sectoral representatives in the local sanggunian are, pursuant to Section
41 (c) of RA 7160 and Section 10 (b) of RA 9264, to be elected “in a manner as may be provided for by law.” Meantime
however, Congress has yet to enact a law providing for the manner of electing sectoral representatives at the
local sanggunians. Such being the case, sectoral representatives are not, in the meantime, included in the determination of
quorum in the localsanggunians.

In view of the foregoing, the Sangguniang Bayan is composed of the 8 regular members,
the Liga ng mga Barangay President and the SK Federation President as ex-officio members, and the Vice-Mayor as
Presiding Officer. The total membership in that sanggunian, therefore, is eleven (11). Relative thereto, Section 53 of the
Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and
qualified shall constitute a quorum to transact official business. “Majority” has been defined in Santiago vs. Guingona, et
al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body. Following the said
ruling, since the total membership of thesanggunian being 11, 11 divided by 2 will give us a quotient of 5.5. Let it be noted
however that a fraction cannot be considered as one whole vote, since it is physically and legally impossible to divide a person
or even his vote into a fractional part. Accordingly, we have to go up to the next whole number which is 6. In this regard,
6 is more than 5.5 and therefore, more than one-half of the total membership of the sangguniang bayan in conformity with
the jurisprudential definition of the term majority. Thus, the presence of 6 members shall already constitute a quorum in
the sangguniang bayan for it to conduct official sessions.

xxxx

Very truly yours,


(signed)
AUSTERE A. PANADERO
OIC, OUSLG17
In another DILG Opinion dated 9 February 2010, the Undersecretary for Local Government opined that the Vice-
Governor, as a Presiding Officer of the Sangguniang Panlalawigan, is a composite member thereof and is included in the
determination of the quorum. DILG Opinion No. 13, s. 2010 reads:

DILG Opinion No. 13, s. 2010


09 February 2010
GOVERNOR JESUS N. SACDALAN
VICE-GOVERNOR EMMANUEL F. PIÑOL
Provincial Capitol Building
Province of Cotabato

Gentlemen:

This has reference to your earlier separate letters, which we herein consolidated, considering that they both pertain
to one subject matter.

Per your letters, the Sangguniang Panlalawigan held its regular session on 12 January 2010 where the August Body
embarked upon the approval of the Annual Budget. According to you, all fourteen (14) members of
the Sangguniang Panlalawigan attended said session, namely: ten (10) regular SangguniangPanlalawigan Members, three (3)
ex-officio Sangguniang Panlalawigan Members and the Vice-Governor as the Presiding Officer. You further represented that
when said approval of the Annual Budget was submitted for votation of said August Body, the result was: seven (7) members
voted for the approval of the Annual Budget and six (6) voted against.

Specifically, you want us to shed light on the following issues:

“1) Whether or not the august body has reached the required majority of all the members of
the Sangguniang Panlalawigan as provided for in Sections 53 and 54 of the Local Government Code and in relation to Article
107 (g) of its Implementing Rules and Regulations?

2) Whether or not the vice governor as the presiding officer is included in the count in determining the majority of
all the members of thesangguniang panlalawigan to validly pass an appropriation ordinance.

3) Whether or not the board member who signed the Committee Report endorsing the 2010 Proposed Annual
Performance Budget may withdraw without just and valid cause his signature thereon and vote against the approval thereof?

4) In the event that the Province operates under a re-enacted budget, what are those expenditures included in the
term “essential operating expenses” that may be incurred by the Province?”

xxxx

For the sanggunian to officially transact business, there should be a quorum. A quorum is defined by Section 53 of the
Local Government Code of 1991 as referring to the presence of the majority of all the members of the sanggunian who have
been duly elected and qualified. Relative thereto, generally, ordinary measures require for its enactment only the approval of
a simple majority of the sanggunian members present, there being a quorum. These pertain to the normal transactions of
the sanggunian which are approved by the sanggunian through a vote of simple majority of those present. On the other hand,
there are certain measures where the Local Government Code requires for its approval the vote of majority of all the
members who were duly elected and qualified. This is what we call approval by the qualified majority of the sanggunian. In
this case, the approval is to be voted not just by the majority of those present in a session there being a quorum but by the
majority of all the members of the sanggunian duly elected and qualified regardless of whether all of them were present or
not in a particular session, there being a quorum.

xxxx

In determining a quorum, Section 53 of the Local Government Code of 1991 provides that a majority of all the
members of the sanggunian who have been elected and qualified shall constitute a quorum. Along this line, it bears to
emphasize that per Section 467 (a) of the Local Government Code of 1991, the Sangguniang Panlalawigan is a composite
body where the Vice-Governor as Presiding Officer is a composite member thereof. As a composite member in
the sangguniang panlalawigan, he is therefore included in the determination of a quorum.

“Majority” has been defined by the Supreme Court in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November
1998) as that which is greater than half of the membership of the body or that number which is 50% + 1 of the entire
membership. We note, however, that using either formula will give us the same result. To illustrate, using the 50% +1 formula,
the 50% of a sanggunian composed of 14 members is 7. Hence 7 + 1 will give us a sum of 8. On the other hand, if we use the
second formula which is that number greater than half, then 8, in relation to 7, is definitely greater than the latter. The simple
majority of the sangguniang panlalawigan with fourteen (14) members where all of them were present in that particular
session is therefore 8.

xxxx

Very truly yours,


(signed)
AUSTERE A. PANADERO
Undersecretary18
In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total composition
of the SangguniangPanlungsod. In this case, the Sangguniang Panlungsod of La Carlota City, Negros Occidental is composed of
the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. A
majority of the 13 “members” of theSangguniang Panlungsod, or at least seven (7) members, is needed to constitute a
quorum to transact official business. Since seven (7) members (including the presiding officer) were present on the 17 March
2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of
respondent was validly accepted.

The Perez19 case cited in the Dissenting Opinion was decided in 1969 prior to the 1987 Constitution, and prior to the
enactment of RA 7160 or the Local Government Code of 1991. In fact, the Perez case was decided even prior to the old Local
Government Code which was enacted in 1983. In ruling that the vice-mayor is not a constituent member of the municipal
board, the Court in the Perez case relied mainly on the provisions of Republic Act No. 305 (RA 305) creating the City of Naga
and the amendatory provisions of Republic Act No. 225920 (RA 2259) making the vice-mayor the presiding officer of the
municipal board. Under RA 2259, the vice-mayor was the presiding officer of the City Council or Municipal Board in chartered
cities. However, RA 305 and 2259 were silent on whether as presiding officer the vice-mayor could vote. Thus, the applicable
laws in Perez are no longer the applicable laws in the present case.

On the other hand, the 2004 case of Zamora v. Governor Caballero,21 in which the Court interpreted Section 5322 of
RA 7160 to mean that the entire membership must be taken into account in computing the quorum of
the Sangguniang Panlalawigan, was decided under the 1987 Constitution and after the enactment of the Local Government
Code of 1991. In stating that there were fourteen (14) members of the Sangguniang Panlalawigan of Compostela Valley,23 the
Court in Zamora clearly included the Vice- Governor, as presiding officer, as part of the entire membership of
the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

On the issue that respondent’s appointment was issued during the effectivity of the election ban, the Court agrees
with the finding of the Court of Appeals and the Civil Service Commission that since the respondent’s appointment was validly
issued on 18 March 2004, then the appointment did not violate the election ban period which was from 26 March to 9 May
2004. Indeed, the Civil Service Commission found that despite the lack of signature and certification of the Human Resource
Management Officer of La Carlota City on respondent’s appointment papers, respondent’s appointment is deemed effective
as of 18 March 2004 considering that there was substantial compliance with the appointment requirements, thus:

Records show that Atty. Rojo’s appointment was transmitted to the CSC Negros Occidental Field Office on March 19,
2004 by the office of Gelongowithout his certification and signature at the back of the appointment. Nonetheless, records
show that the position to which Atty. Rojo was appointed was published on January 6, 2004. The qualifications of
Atty. Rojo were deliberated upon by the Personnel Selection Board on March 5, 2004, attended by Vice Mayor Jalandoon as
Chairman and Jose Leofric F. De Paola, SP member and Sonia P. Delgado, Records Officer, as members. Records likewise show
that a certification was issued by Vice Mayor Jalandoon, as appointing authority, that the appointment was issued in
accordance with the limitations provided for under Section 325 of RA 7160 and the said appointment was reviewed and found
in order pursuant to Section 5, Rule V of the Omnibus Rules Implementing Executive Order No. 292. Further, certifications
were issued by the City Budget Officer, Acting City Accountant, City Treasurer and City Vice Mayor that appropriations or
funds are available for said position. Apparently, all the requirements prescribed in Section 1, Rule VIII in CSC Memorandum
Circular No. 15, series of 1999, were complied with.24
Clearly, the appointment of respondent on 18 March 2004 was validly issued considering that: (1) he was considered
resigned asSangguniang Panlungsod member effective 17 March 2004; (2) he was fully qualified for the position
of Sanggunian Secretary; and (3) there was substantial compliance with the appointment requirements.

WHEREFORE, we DENY the petition. We AFFIRM the 14 September 2007 Decision and the 18 January 2008
Resolution of the Court of Appeals in CA-G.R. CEB-SP No. 01377.

SO ORDERED.
EN BANC

ABAKADA GURO PARTY G.R. No. 166715


LIST (formerly AASJS)*
OFFICERS/MEMBERS
SAMSON S. ALCANTARA,
ED VINCENT S. ALBANO,
ROMEO R. ROBISO,
RENE B. GOROSPE and
EDWIN R. SANDOVAL,

Versus

HON. CESAR V. PURISIMA, in


his capacity as Secretary of
Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity
as Commissioner of the Bureau
of Internal Revenue, and
HON. ALBERTO D. LINA, in his
Capacity as Commissioner of
Bureau of Customs,
Respondents. Promulgated:
August 14, 2008

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

DECISION
CORONA, J.:

This petition for prohibition[1] seeks to prevent respondents from implementing and enforcing Republic Act (RA)
9335[2](Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their
revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund)
and a Revenue Performance Evaluation Board (Board).[3] It covers all officials and employees of the BIR and the BOC with at
least six months of service, regardless of employment status.[4]

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund
and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax
revenue.[5]

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director
General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of
the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized organization.[6]

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the
Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls
short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for
performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual
report to Congress.[7]

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,[8] to be approved by a Joint Congressional Oversight Committee created for
such purpose.[9]

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax
reform legislation. They contend that, by establishing a system of rewards and incentives, the law “transform[s] the officials
and employees of the BIR and the BOC into mercenaries and bounty hunters” as they will do their best only in consideration of
such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated
duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees
of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or
distinction as to why such a system should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it
lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be
dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix
the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without
sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to dismiss
BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the
doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment
and approval of the law, the creation of the congressional oversight committee permits legislative participation in the
implementation and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate
the exercise of this Court’s jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of
the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is
mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the
law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the
implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances,
rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-
accumulation of power on the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed
to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed.

ACTUAL CASE AND RIPENESS

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible
of judicial adjudication.[10] A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a
constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the
individual challenging it.[11] Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome
of the case or an injury to himself that can be redressed by a favorable decision of the Court.[12]

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere
enactment of the law even without any further overt act,[13] petitioners fail either to assert any specific and concrete legal
claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the
outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The
grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where
an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.[14]

ACCOUNTABILITY OF
PUBLIC OFFICERS

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of
the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the
people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily
obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a
system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed
their revenue targets and optimize their revenue-generation capability and collection.[15]

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere
conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying
principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into “bounty
hunters and mercenaries” is not only without any factual and legal basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.[16] To invalidate RA 9335 based on
petitioners’ baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive
which approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional
performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of
public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service
of deserving government personnel.

In United States v. Matthews,[17] the U.S. Supreme Court validated a law which awards to officers of the customs as
well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against
smuggling. CitingDorsheimer v. United States,[18] the U.S. Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting
fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of
their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes
safeguards to ensure that the reward will not be claimed if it will be either the fruit of “bounty hunting or mercenary activity”
or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8
of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The officials, examiners, and
employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or
misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or
injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance,
misfeasance or failure to exercise extraordinary diligence.

EQUAL PROTECTION

Equality guaranteed under the equal protection clause is equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial
differences in relation to the object to be accomplished.[19] When things or persons are different in fact or circumstance, they
may be treated in law differently. In Victoriano v. Elizalde Rope Workers’ Union,[20] this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality,
that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be
treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory
within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based
on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with
mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to
evils as they may appear.[21] (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation
or rational basis and not arbitrary.[22] With respect to RA 9335, its expressed public policy is the optimization of the revenue-
generation capability and collection of the BIR and the BOC.[23] Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to
the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary
function of generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be headed by and subject to
the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the
recommendation of the Secretary [of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.[24]
xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and subject to the management and
control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of the
Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports
of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.[25]
xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the
instrumentalities through which the State exercises one of its great inherent functions – taxation. Indubitably, such substantial
distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to
the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.

UNDUE DELEGATION

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient
standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the
delegate.[26] It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate’s authority and prevent the delegation from running riot.[27] To be sufficient, the standard
must specify the limits of the delegate’s authority, announce the legislative policy and identify the conditions under which it is
to be implemented.[28]

RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the
implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law:

SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-generation capability and collection
of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies
for the purpose of encouraging their officials and employees to exceed their revenue targets.

Section 4 “canalized within banks that keep it from overflowing”[29] the delegated power to the President to fix
revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby
created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as
determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of Percent (%) of the Excess
the Excess the Revenue Targets Collection to Accrue to the Fund

30% or below – 15%

More than 30% – 15% of the first 30%


plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue
collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given
fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to
Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as allocated among
its revenue districts in the case of the BIR, and the collection districts in the case of the BOC.
xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC
for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress.[30] Thus, the
determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions under which
officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short
of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of
collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process: Provided, That the following exemptions shall
apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical
record of collection performance that can be used as basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration
unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided,
however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered
from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by
the Board, termination shall be considered only after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision
shall be immediately executory: Provided, further, That the application of the criteria for the separation of an official or
employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability
of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and
the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The
guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than
those provided by law and only after due process is accorded the employee.[31] In the case of RA 9335, it lays down a
reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due
consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and
incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.[32] The action for
removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process.
At any rate, this Court has recognized the following as sufficient standards: “public interest,” “justice and equity,”
“public convenience and welfare” and “simplicity, economy and welfare.”[33] In this case, the declared policy of optimization of
the revenue-generation capability and collection of the BIR and the BOC is infused with public interest.

SEPARATION OF POWERS

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint Congressional Oversight
Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The
Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority.
The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing
the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall
thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing
rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR.
From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive
function of implementing and enforcing the law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of
the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections[34] is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-
enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of
public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks
and balances inherent in a democratic system of government. x x x xxx xxx
Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
“exponential accumulation of power” by the executive branch. By the beginning of the 20th century, Congress has delegated
an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies perform their functions within the authority delegated to
them. x x x xxx xxx

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories,
namely: scrutiny,investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary
purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative
scrutiny, Congress may request information and report from the other branches of government. It can give recommendations
or pass resolutions for consideration of the agency involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily
available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation
is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx
c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision.
“Supervision” connotes a continuing and informed awareness on the part of a congressional committee regarding executive
operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past
executive branch actions in order to influence future executive branch performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated
authority.

Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions
when granting the President or an executive agency the power to promulgate regulations with the force of law. These
provisions require the President or an agency to present the proposed regulations to Congress, which retains a “right” to
approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed
regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove
of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if
Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and
the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to
independent agencies while retaining the option to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides
legislative check on the activities of unelected administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice.
It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived
necessity- to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to
the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of
parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent
safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive
disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without
some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine
whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is
appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They
urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and
investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the President’s veto authority and intrusion into the
powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances
separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They
submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise
of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they
do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits
Congress to participate prospectively in the approval or disapproval of “subordinate law” or those enacted by the executive
branch pursuant to a delegation of authority by Congress. They further argue that legislative veto “is a necessary response by
Congress to the accretion of policy control by forces outside its chambers.” In an era of delegated authority, they point out
that legislative veto “is the most efficient means Congress has yet devised to retain control over the evolution and
implementation of its policy as declared by statute.”

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto
provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to §
244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the
suspension pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the
executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the
deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the alien’s appeal, holding that it had no power to declare unconstitutional an act of Congress. The United
States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the alien’s
deportation and that § 244(c)(2) violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court shied away from the issue of
separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the
one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of
the Constitution requiring the passage by a majority of both Houses and presentment to the President. x x x xxx xx
x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions
invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission
Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions
although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism
requirement of Article I. Indeed, some of these veto provisions were not even exercised.[35] (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and considering the
nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189
(The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to
monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated
by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the
Commission on Elections.[36]

With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional
separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may
in fact even enhance the separation of powers as it prevents the over-accumulation of power in the executive branch.

However, to forestall the danger of congressional encroachment “beyond the legislative sphere,” the Constitution
imposes two basic and related constraints on Congress.[37] It may not vest itself, any of its committees or its members with
either executive or judicial power.[38] And, when it exercises its legislative power, it must follow the “single, finely wrought and
exhaustively considered, procedures” specified under the Constitution,[39] including the procedure for enactment of laws and
presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In
particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in connection
with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining
to their departments and its power of confirmation[40] and
(2) investigation and monitoring[41] of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.[42]

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative
vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed
implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a “right”
or “power” to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a
congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional leash
(other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad
powers.[43] It radically changes the design or structure of the Constitution’s diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own laws.[44]

Congress has two options when enacting legislation to define national policy within the broad horizons of its
legislative competence.[45] It can itself formulate the details or it can assign to the executive branch the responsibility for
making necessary managerial decisions in conformity with those standards.[46] In the latter case, the law must be complete in
all its essential terms and conditions when it leaves the hands of the legislature.[47] Thus, what is left for the executive branch
or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details
(supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).[48]

Administrative regulations enacted by administrative agencies to implement and interpret the law which they are
entrusted to enforce have the force of law and are entitled to respect.[49] Such rules and regulations partake of the nature of a
statute[50] and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of
law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a
competent court.[51]Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting
them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the
provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the
Constitution.
CONSIDERED OPINION OF
MR. JUSTICE DANTE O. TINGA

Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition
for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment.[52]

Section 1, Article VI of the Constitution states:


Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal laws)[53] is vested in Congress which consists of
two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both
chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional
committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he
approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it
originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration,
two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the
other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members
voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it
originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis
supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment
to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act
of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot
take effect without such presentment even if approved by both chambers of Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.[54]Second, it must be presented to and approved by the President.[55] As summarized by Justice Isagani
Cruz[56] and Fr. Joaquin G. Bernas, S.J.[57], the following is the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for some measures that
must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its referral by the Senate
President or the Speaker to the proper committee for study.

The bill may be “killed” in the committee or it may be recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be
consolidated into one bill under common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety,
scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a
bill.

The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three
days before the third reading. On the third reading, the members merely register their votes and explain them if they are
allowed by the rules. No further debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If
there are differences between the versions approved by the two chambers, a conference committee[58] representing both
Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be
submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of
the Senate President, the Speaker, and the Secretaries of their respective chambers…[59]

The President’s role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as law after the
required publication.[60]

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the
hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it
is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of
the statute. Subject to the indispensable requisite of publication under the due process clause,[61] the determination as to
when a law takes effect is wholly the prerogative of Congress.[62] As such, it is only upon its effectivity that a law may be
executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the
executive branch, particularly of the President, is limited to approving or vetoing the law.[63]
From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to
play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus
unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of
a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to
overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar
provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them
wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us.[64]

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other
provisions of the law? Will it render the entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent court, the remainder of
this Act or any provision not affected by such declaration of invalidity shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,[65] the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid,
the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute
creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to presume that the legislature would
have enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to make a
complete, intelligible and valid statute, which carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as
conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended
them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if
one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or
connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision
from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of
the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which
carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by
providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance
Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or
implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers
of general circulation[66] and became effective 15 days thereafter.[67] Until and unless the contrary is shown, the IRR are
presumed valid and effective even without the approval of the Joint Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional
Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and
therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of
RA 9335, the rest of the provisions remain in force and effect.

SO ORDERED.